Illusion of Justice

Human Rights Abuses in US Terrorism Prosecutions

Federal agents and police escort James Cromitie (center) from the FBI’s New York headquarters on May 21, 2009. In 2011, Cromitie and three other men were sentenced to 25 years in prison for an alleged plot to bomb two synagogues in the Bronx and shoot down planes at an Air National Guard base in Newburgh, New York.

Summary

Muslims are a fundamental part
of the American family. In fact, the success of American Muslims and our
determination to guard against any encroachments on their civil liberties is
the ultimate rebuke to those who say that we’re at war with Islam.

—US President Barack
Obama, May 23, 2013

This
community is under siege. And even if they’re not under siege, they think
they are.

—Tom Nelson, attorney, Portland,
Oregon, August 13, 2012

Terrorism entails horrifying acts, often resulting in
terrible losses of human life. Governments have a duty under international
human rights law to take reasonable measures to protect people within their jurisdictions
from acts of violence. When crimes are committed, governments also have a duty to
carry out impartial investigations, to identify those responsible, and to prosecute
suspects before independent courts. These obligations require ensuring fairness
and due process in investigations and prosecutions, as well as humane treatment
of those in custody.

However, since the September 11, 2001 attacks on New York
and Washington, DC, the United States government has failed to meet its
international legal obligations with respect to its investigations and
prosecutions of terrorism suspects, as well as its treatment of terrorism
suspects in custory.

This has been true with regard to foreign terrorism suspects
detained at the US military detention center at Guantanamo Bay, Cuba, most of
whom are being held indefinitely without charge. And, as this report documents,
it is also too often true with regard to American Muslim defendants
investigated, tried, and convicted of terrorism or terrorism-related offenses
in the US criminal justice system.

This report examines 27 such cases—from initiation of the
investigations to sentencing and post-conviction conditions of confinement—and documents the significant human cost of certain
counterterrorism practices, such as aggressive sting operations and
unnecessarily restrictive conditions of confinement. Since the September
11 attacks, more than 500 individuals have been prosecuted in US federal courts
for terrorism or related offenses—40 cases per year on average. Many
prosecutions have properly targeted individuals engaged in planning or
financing terror attacks. But many others have targeted individuals who do not
appear to have been involved in terrorist plotting or financing at the time the
government began to investigate them.

Indeed, in some cases the Federal Bureau of Investigation
may have created terrorists out of law-abiding individuals by conducting sting
operations that facilitated or invented the target’s willingness to act. According
to multiple studies, nearly 50 percent of the more than 500 federal
counterterrorism convictions resulted from informant-based cases; almost 30
percent of those cases were sting operations in which the informant played an
active role in the underlying plot. In the case of the “Newburgh Four,”
for example, a judge said the government “came up with the crime,
provided the means, and removed all relevant obstacles,” and had, in the
process, made a terrorist out of a man “whose buffoonery is positively
Shakespearean in scope.”

In such instances, the government’s purpose appears to
have been preventive: to root out and prosecute individuals it believes might
eventually plan and carry out terrorism. To this end, it has substantially
changed its approach, loosening regulations and standards governing the conduct
of terrorism investigations.

While some of these cases involved foreign nationals and
conduct overseas, or individuals who are not Muslim, many of the most
high-profile terrorism prosecutions have focused on “homegrown”
terrorist threats allegedly posed by American Muslims.

Human Rights Watch and Columbia Law School’s Human
Rights Institute found that at times, in aggressively pursuing terrorism threats
before they even materialize, US law enforcement overstepped its role by
effectively participating in developing terrorism plots—in at least two
cases even offering the defendants money to entice them to participate in the
plot.

In theory, the defendants in these cases should be able to
avoid criminal liability by making a claim of “entrapment.”
However, US law requires that to prove entrapment a defendant show both that
the government induced him to commit the act in question and that he was not
“predisposed” to commit it. This predisposition inquiry focuses
attention on the defendant’s background, opinions, beliefs, and
reputation—in other words, not on the crime, but on the nature of the
defendant. This character inquiry makes it exceptionally difficult for a
defendant to succeed in raising the entrapment defense, particularly in the
terrorism context, where inflammatory stereotypes and highly charged
characterizations of Islam and foreigners often prevail. Indeed, no claim of
entrapment has been successful in a US federal terrorism case to date. European
human rights law—instructive for interpreting internationally recognized
fair trial rights—suggests that the current formulation of the US defense
of entrapment may not comport with fair trial standards.

Meanwhile, the law enforcement practices described in this
report have alienated the very communities the government relies on most to
report possible terrorist threats and diverted resources
from other, more effective ways, of responding to the threat of terrorism.
Its proclaimed success in convicting alleged terrorist conspirators has come
with serious and unnecessary costs to the rights of many of those prosecuted
and convicted, to their families and communities, to the public, and to the
rule of law. Ultimately, these costs threaten to undermine the goal of
preventing and effectively prosecuting and sanctioning terrorism crimes.

Our research explored cases from a chronological and
geographic cross-section of the post-September 11 terrorism prosecutions. Cases
spanned the months immediately after the September 11 attacks to more recent
indictments, in order to explore which trends, if any, persisted or developed
over time. We also sought cases from across the United States to examine the
impact of such prosecutions on various American Muslim communities and to account
for regional investigative and prosecutorial differences. Cases include
prosecutions for material support and conspiracy, some resulting in sentences
of more than 15 years or life imprisonment.

These cases do not constitute a representative sample that
would allow us to generalize about all federal prosecutions, but they raise
troubling questions about the fairness and effectiveness of many of the
policies, practices, and tactics employed by the Federal Bureau of
Investigation (FBI), the Justice Department, and the Bureau of Prisons in
terrorism cases.

In some cases, the unfairness arises from the application of
certain laws, some of which Congress greatly expanded after September 11,
including material support laws, the Foreign Intelligence Surveillance Act, and
the Classified Information Procedures Act.

Human Rights Concerns

We documented the following patterns that raise serious human
rights concerns:

Discriminatory investigations, often
targeting particularly vulnerable individuals (including people with
intellectual and mental disabilities and the indigent), in which the
government—often acting through informants—is actively involved in
developing the plot, persuading and sometimes pressuring the target to
participate, and providing the resources to carry it out.

Use of overly broad material support charges,
punishing behavior that did not demonstrate intent to support terrorism.

Prosecutorial tactics that may violate fair
trial rights, such as introducing prejudicial evidence—including evidence
obtained by coercion, classified evidence that cannot be fairly contested, and
inflammatory evidence about terrorism in which defendants played no part; and
limited ability to challenge surveillance warrants due to excessive government
secrecy.

Harsh and at times abusive conditions of
confinement, which often appear excessive in relation to the security risk
posed. These include:

Prolonged solitary confinement and severe
restrictions on communicating in pretrial detention, possibly impeding
defendants’ ability to assist in their own defense and contributing to
their pleading guilty.

Excessive lengthening of sentences and
draconian conditions post-conviction, including prolonged solitary confinement
and severe restrictions on contact with families or others, sometimes without
explanation or recourse. One detainee called it “a touch of hell”:
“My children… could see, but not touch me as though I had some sort
of contagious disease.”

Taken together, these patterns have contributed to cases in
which individuals who perhaps would never have participated in a terrorist act
on their own initiative and might not even had the capacity to do so, were
prosecuted for serious, yet government-created, terrorism plots.

In other cases, people who contributed to charities in the
Middle East ended up convicted of “material support” based on flimsy
connections to alleged terrorism.

Illustrative examples of the
cases documented in this report include:

Targeting People with Mental or
Intellectual Disabilities in Stings— Rezwan Ferdaus: Although an FBI
agent even told Ferdaus’ father his son “obviously” had
mental health problems, the FBI targeted him for a sting operation, sending an
informant into Ferdaus’ mosque. Together, the FBI informant and Ferdaus
devised a plan to attack the Pentagon and US Capitol, with the FBI providing
fake weaponry and funding Ferdaus’ travel. Yet Ferdaus was mentally and
physically deteriorating as the fake plot unfolded, suffering weight loss so
severe his cheek bones protruded, loss of bladder control that left him wearing
diapers, and depression and seizures so bad his father quit his job to care for
Ferdaus. He was eventually sentenced on material support for terrorism and
explosives charges to 17 years in prison with an additional 10 years of supervised
release.

Use of Evidence Obtained by
Coercion—Ahmed Omar Abu Ali: Abu Ali, a US citizen, was swept up in a
mass arrest campaign in Saudi Arabia in 2003. Ali alleged being whipped, denied
food, and threatened with amputation, and ultimately provided a confession he
says was false to Saudi interrogators. Later on trial in Virginia, the judge
rejected Ali’s claims of torture and admitted his confession into
evidence. He was convicted of conspiracy, providing material support to
terrorists, and conspiracy to assassinate the president. He received a life
sentence, which he is serving in solitary confinement at the supermax prison in
Florence, Colorado.

Abusive Detention Conditions—Uzair
Paracha: Uzair Paracha was held in solitary confinement for nearly two
years before he was convicted on charges of material support. Nine months after
his arrest and while he was refusing to take a plea deal, the federal
government moved Paracha to a harsh regime of solitary confinement pursuant to
Special Administrative Measures (SAMs)—special restrictions on his
contact with others imposed on the grounds of protecting national security or
preventing disclosure of classified material—ostensibly due to ties with Al-Qaeda.
For a time, Paracha was only permitted to speak to prison guards. “You
could spend days to weeks without uttering anything significant beyond
‘please cut my lights,’ ‘can I get a legal call/toilet paper/a
razor,’ etc., or just thanking them for shutting our light,” he wrote
to us. After he was convicted, the SAMs were modified to permit him to
communicate with other inmates. “I faced the harshest part of the SAMs
while I was innocent in the eyes of American law,” he wrote.

Ignoring Alternative Solutions and
Adverse Impact on American Muslim Communities—Adel Daoud: Adel Daoud
was 17 years old when undercover FBI employees began communicating with him through
an online Islamic forum. At the time, Daoud was a reclusive student at an
Islamic high school in a Chicago suburb, spending most of his time on the
computer in his parents’ basement. He sought guidance from his parents
about terms like jihad that he was reading about online; they told him jihad
meant the struggle to be supportive of your parents. Yet online, undercover FBI
employees slowly cultivated a fake plot with Daoud to attack a bar in downtown
Chicago. Daoud’s arrest in fall 2013 shocked his community and others in
the Chicago area, prompting speculation about why the FBI deployed undercover
agents to ensnare the teenager, rather than contact his parents or community
leaders. “These kids don’t wake up one day and decide,
‘I’m going to blow society up,’” a Muslim community advocate
in Chicago told us, pointing out that just as some teenagers begin to turn to
drugs, others may go online and start exploring extremist websites.
Daoud’s trial is scheduled for November 2014.

While we examined more than two dozen specific cases
in-depth, we also conducted a statistical analysis of the 494 cases the Justice
Department identified as relating to international terrorism for the period
from September 11, 2001 to December 31, 2011. Among the 494 cases examined, there were 917
separate convictions. The two most frequent offenses, “Providing Material
Support” and “Conspiracy,” account for more than 1 in 4 of
the convictions. The analysis examines the numbers and percentages of
convictions secured through pleas or trials as well as the sentences that were
meted out for certain offenses or combinations of offenses. While we
documented problematic practices in 27 specific cases, others of the 494 raise
similar concerns.

Adverse Impact on American Muslim Communities, Law
Enforcement

The cases we examined—and the hundreds of other
terrorism prosecutions in the US since the September 11 attacks—have not
occurred in a vacuum. At the same time as the government has aggressively sought
out terrorism suspects, sometimes before the individual concerned has expressed
any intention to use violence, it has sought to build relationships with
American Muslim community leaders and groups, believing they are critical
sources of information to prevent terrorist attacks.

It has also sought to build American Muslim
communities’ sense of cohesion and trust in law enforcement, as part of a
strategy for what it calls “Countering Violent Extremism.” However,
many of the practices described in this report are counter to the goals of
these policies: in some communities, they have led to anxiety and a fear of
interacting with law enforcement.

Some Muslim community members said that fears of government
surveillance and informant infiltration had negatively transformed the quality
of the mosque from a place of spiritual sanctuary and togetherness to one of
vigilance. Now, they said, they must watch what they say, to whom, and how often
they attend services.

The impact on communities and individuals is not uniform.
Many advocates and community leaders said they continue to have strong
relationships with local law enforcement. But with some American Muslims less
willing to reach out to law enforcement, the FBI’s goal of learning of
potential terrorist plots before they progress may have been thwarted by its
own abusive investigation tactics.

There are significant changes
that the US government can implement immediately to reduce the rate of people
being prosecuted with little or no evidence of intent to engage in terrorism,
and to improve their relationships with American Muslim communities. These
include:

Key Recommendations to
the US Federal Government

Restrict the use of informants and ensure
the practice is subject to robust oversight. Informants should not be sent into
community or religious institutions in pre-investigation stages before there is
particularized suspicion of wrongdoing.

Develop rights-respecting partnerships with
local community groups and support community-driven programs as an alternative
to aggressive investigations that can lead to abuses and end up doing more harm
than good.

Ensure that prosecutors do not charge individuals
or groups for providing material support based on activity protected under
freedom of expression principles of international human rights law.

Ensure humane prison conditions, and do not
subject prisoners to prolonged solitary confinement.

Methodology

This report is primarily based on interviews conducted
between April 2012 and February 2013, information obtained from Freedom of
Information Act (FOIA) requests, court documents, and other publicly available
sources.

Human Rights Watch and Columbia Law School’s Human
Rights Institute conducted more than 215 interviews with individuals charged or
convicted of terrorism-related crimes, members of their families and members of
their communities, criminal defense attorneys, judges, current and former
federal prosecutors, government officials, academics, and other experts.

In choosing which cases to investigate, we sought to explore
cases that represented a cross-section of the post-September 11 terrorism
prosecutions, ranging in time, geography, and type of investigation. We chose
to examine cases that spanned the timeline from the months immediately after
the September 11, 2001 attacks to those in which defendants were only recently
indicted, in an effort to explore the broadest possible post-9/11 timeframe. Of
the 27 cases we examined, 10 involved indictments before 2006, 10 involved
indictments between 2006 and 2009, and 8 involved indictments since 2010. We
sought cases from across the United States, in order to include the various
narratives of Muslim communities and account for regional investigative and
prosecutorial differences. Our cases generally fell into four regional
clusters— northeast, midwest, south, and northwest—both for ease of
research and to allow for in-depth examination of particular communities. We
spoke with families and community members in 10 cities, frequently accounting
for multiple Muslim communities within each city.

We closely reviewed 27 federal prosecutions that involved 77
total defendants by examining publicly available court documents recovered from
public databases or defense counsel records. Of these 77 defendants, we
examined in-depth the experiences of 42. We sought to speak with each
individual, but were sometimes advised by defense counsel or families to
refrain from corresponding with defendants due to ongoing litigation or for
other reasons. In all 20 cases where litigation was no longer ongoing, or in
which defense counsel or family assented to our requests for interviews, we
sought access from the Bureau of Prisons to a confidential in-person interview
with detained individuals. We were granted access to four individuals. In
denying two of our access requests, the Bureau of Prisons advised us to submit
new requests detailing our research protocols, which we did in March and June
2013. We received no response.

Where the Bureau of Prisons denied our request to interview
detained individuals, we sought to correspond with them by letter, email or
telephone, and corresponded with an additional 12 detainees in this way. We
also continued correspondence with two detainees with whom we were able to
speak in person. In addition to our communication with defendants currently in Bureau
of Prisons facilities, we interviewed in person three defendants who had
completed their sentences in federal prison or who were held at a detention
facility other than a federal prison.

For the 42 individuals involved in cases examined in this
report, we conducted in-depth interviews with a total of more than 123 people,
including defense counsel, family members, friends, defense experts, and
representatives from civil society organizations that work on issues directly
related to these cases. In addition, we requested interviews with prosecutors in
22 cases: three current prosecutors and four former prosecutors agreed to speak
with us. The remainder either turned down or did not respond to our request.

While we attempted to speak with community members in most cities,
mosque attendees were often reluctant to speak for fear of surveillance or
government scrutiny for any association with the cases we were examining. When
necessary, we provided family members and congregants the opportunity to be
interviewed by us without providing a last name.

In each of the 27 cases that form the basis of this report,
we obtained publicly available court records from Public Access to Court
Electronic Records (PACER); occasionally we received copies of publicly filed
court records from defendants, family members or their counsel.

For information on detention conditions, we documented the
experience of solitary confinement for 32 individuals charged with or convicted
of terrorism offenses or alleged to be involved in terrorism. Twenty-four of
those individuals were held in solitary confinement prior to their conviction; 8
were held in solitary post-conviction. We also documented the experiences of 14
current or former Communications Management Unit (CMU) detainees in person, or
via email or by telephone, and 6 individuals subjected to Special
Administrative Measures (SAMs).

To account for the almost 500 cases that the National
Security Division of the Department of Justice (DOJ-NSD) considers
“terrorism or terrorism-related” prosecutions, we also conducted a
statistical analysis of these cases using publicly available government and
court records. On June 6, 2012, pursuant to a FOIA request, the DOJ-NSD
released its most updated version of its chart of terrorism or
terrorism-related crimes, documenting basic criteria of these cases. Those 494
cases span from September 11, 2001 to December 31, 2011.[1] The chart only includes
those cases resulting in convictions.[2]
In order to gauge statistical correlations across criminal charge, sentence,
and detention conditions, we disaggregated the information from the static
chart and input it into a database for analysis with additional information
obtained from a variety of primary sources including: each case’s docket,
the indictment or superseding indictment in the case, and the judgment entry in
the case, when those documents were available. Detention status and location
for each defendant were cross-checked with the Bureau of Prison’s Inmate
Locator service between the dates of July 23, 2013 and July 25, 2013. Where
relevant, those statistics were integrated into this report. That data is also
publicly available online at http://www.bop.gov/inmateloc/.

We pursued requests under the
Freedom of Information Act from the Bureau of Prisons, the Federal Bureau of
Investigation, and the Department of Justice National Security Division. We met
with the FBI and DOJ-NSD in person, and conducted written correspondence. We
submitted written questions to DOJ-NSD on February 25, 2013, which were
answered in writing on May 23, 2013 (see Appendix - D). After an initial
meeting with the FBI’s Office of General Counsel and Office of Public
Affairs, we submitted written questions to the FBI on November 21, 2012 (see Appendix
- D). Between November 2012 and May 2013, we followed up with the FBI General
Counsel’s office eight times and received five emails assuring us that
our questions were under review and that responses were being prepared or
finalized. At time of writing, the FBI has not provided answers to our
questions or formally declined to respond to our letter. We shared a copy of
this report with DOJ-NSD and the FBI prior to publication.

All interviews were conducted
in English when possible, with Arabic or Urdu used in four cases, via translator. All participants were informed
of the purpose of the interview and consented orally or in writing. No
interviewee received compensation for providing information. Where appropriate,
Human Rights Watch and Columbia Law School's Human Rights Institute provided
interviewees with contact information for organizations providing legal,
counseling or social services.

I. “Homegrown Terrorism” and the Preventive
Approach to Investigations

Between 2002 and 2011, nearly 500 individuals were convicted
of terrorism or terrorism-related offenses in the United States, with the federal
government charging an average of about 40 individuals every year, according to
Department of Justice data.[3]

Some of these cases resulted from what appear to have been
deliberate attempts at terrorism or terrorism financing.[4]
However, in most of the cases involving the use of informants we reviewed in
depth for this report, the defendants do not appear to have been involved in
terrorist plotting or financing at the time the government began to investigate
them. Rather, in these cases, the government’s purpose appears to have
been preventive: to root out and prosecute individuals the government believes
might eventually plan and carry out acts of terrorism. To this end, the US
government has substantially changed the way it conducts policing and
investigations related to terrorism—loosening regulations and standards
governing the conduct of investigations, and engaging in extensive surveillance
and use of informants, particularly in American Muslim communities.

Following the September 11, 2001 attacks, the FBI
reorganized to make prevention of terrorism its top institutional priority, shifting
resources from traditional crime investigations to counterterrorism. More than 40
percent of the FBI’s operating budget of $3.3 billion is now devoted to
counterterrorism.[5]

In 2006, then-Deputy Attorney General Paul McNulty described
the Department of Justice’s preventive approach as “doing
everything in its power to identify risks to our nation’s security at the
earliest stage possible and to respond with forward-leaning—preventative—prosecutions.”[6]
Congress assisted by allocating significant funding to the FBI to further the
goal of prevention.[7]

At the same time, the US government substantially downgraded
legal restrictions on the Department of Justice and FBI in particular, which
had been designed to protect civil liberties during investigations and some of
which had been introduced in response to past abusive behavior.[8]
Instead of authorizing limited criminal investigations, the rules authorize and
encourage the FBI to perform what amounts to expansive intelligence collection.
These changes include:

Increased surveillance of communications:
Congress expanded the communications that may be subject to surveillance under
the Foreign Intelligence Surveillance Act (FISA) (see section IV).

Expansive information collection: The
Department of Justice, under revised Attorney General Guidelines, gave the FBI expansive
authority to conduct pre-investigation
“assessments”—gathering information in the absence of
suspicion of wrongdoing or threat to national security—for unlimited
periods.[9] As a
Brennan Center study notes, the FBI can now “gather and store in their
databases information about where individuals pray, what they read, and who
they associate with.”[10] The FBI
may also task and recruit informants from a particular community without any
articulable suspicion of criminal activity, in contrast to previous limits.[11]

Invasive investigation techniques: FBI
agents can now use invasive investigation methods—attending religious
services or political events,[12] or tracking
an individual’s movements—without having a reasonable indication
that anyone is breaking the law. This is due to substantial revisions of the
Attorney General Guidelines and the FBI’s Domestic Investigations and
Operations Guide (DIOG).[13] (Some
state and local law enforcement also engage in these activities, but they are
not a focus of this report.)[14]

Theories of “Homegrown Terrorism” and
“Radicalization”

At the same time, the FBI—as well as state and local
law enforcement—developed new theories about “homegrown
terrorism” and “radicalization.” The notion was that Al‑Qaeda
would seek to recruit and radicalize American Muslims to conduct the next major
terrorist attack, and use the US as a base for fundraising.[15]
Over time, law enforcement also began to focus on the prospect of a “lone
wolf” terrorist, who was inspired by Al‑Qaeda ideology but acted
alone.[16]

According to “radicalization” theories,
“violent extremists”[17]
progress through particular stages and adopt extremist beliefs that may lead
them to take violent or illegal actions.[18] At
least at the federal level, these theories appear to have driven actual federal
terrorism investigations, with FBI behavioral analysts seeking to identify
terrorism suspects at various stages of the process.[19]
Some studies have debunked radicalization theories, and even federal agencies
have conflicting views on their validity.[20] The FBI now believes that the threat and
activity of “homegrown violent extremists,” though growing, is also
unpredictable.[21]

Fears of homegrown terrorism and radicalization theories
have driven federal agencies to treat American Muslim communities as uniquely
susceptible to terrorist propaganda and to subject them to greater government
scrutiny.[22] Yet
this assumption is unsubstantiated. As a 2009 Pew study put it,
“[v]iolent jihad is discordant with the values, outlook and attitudes of
the vast majority of Muslim Americans, most of whom reject extremism.”[23]

Widespread Surveillance of American Muslims and Use
of Informants

With expanded authorities, and based on radicalization
theories, the FBI has conducted surveillance on communities based on their
religious and ethnic make-up. It has created demographic profiles to map the
racial, ethnic and religious composition of neighborhoods, including the location
of mosques and beliefs of congregants.[24] As we
describe in section VII, the FBI has also used voluntary interviews and
activities presented as “community outreach” to solicit information
from American Muslims, which have fed fears of law enforcement and distrust
within communities.

As part of the “assessments” that the FBI now
has the authority to conduct, the FBI has utilized undercover agents or paid
informants. Posing as newcomers or converts, informants infiltrate religious
and cultural institutions in communities of which they are not already a part.
As several journalists have documented, these informants secretly gather
information on religious practices and political beliefs of community members
attending mosques and participating in cultural events.[25]
Informants may also pose as newcomers at coffee shops, delis, and other local
hangouts, seeking to gather information or befriend and inform on locals they
meet. It is not clear how often the FBI uses paid and unpaid informants
generally, or in national security cases in particular, but in a budget request
from 2008 the FBI stated it has over 15,000 paid informants.[26]

The FBI has repeatedly denied conducting surveillance solely
based on race or ethnicity[27] or
sending informants into mosques to “troll” for leads, although as
we describe in the next chapter, it has clearly done the latter.[28]

The FBI has justified its “domain mapping”
program, in which the FBI collects information on where ethnic and religious
communities are located, by arguing that “terrorist and criminal groups
target ethnic and geographic communities for victimization and/or
recruitment.”[29] This
approach to investigations is discriminatory and counterproductive, undermining
trust in authorities in precisely the communities where law enforcement claims
to want to build that trust.

All of the high-profile domestic terrorism plots of the last
decade, with four exceptions,[30] were
actually FBI sting operations—plots conducted with the direct involvement
of law enforcement informants or agents, including plots that were proposed or
led by informants. According to multiple studies, nearly 50 percent of the more
than 500 federal counterterrorism convictions resulted from informant-based
cases; almost 30 percent of those cases were sting operations in which the
informant played an active role in the underlying plot.[31]

For this report, we reviewed in-depth 13 law enforcement
investigations where informants played an active and central role.[32]
At least eight of the investigations we examined were sting operations in which
government officials identified someone as a potential target, helped him plan
a terrorist attack and subsequently arrested him for involvement in that plan.[33]

In a traditional sting operation, law enforcement officials,
through an informant or undercover agent, give their target an opportunity to
commit a crime he or she might not have committed otherwise. Traditional stings
tend to take place when there is evidence of similar past criminal activity by
the target, or a propensity towards committing a certain kind of criminal act. For
example, a person suspected of buying drugs may be approached by an undercover
agent pretending to be a drug dealer, or someone known to view child
pornography online may be approached with an offer to meet a child in person. A
prosecutor can bring charges against the target of an investigation when he or
she seizes on the proffered opportunity, such as buying the drugs or agreeing
to meet a child for illegal sexual conduct. Former FBI agent Michael German
told us:

Today’s terrorism sting operations reflect a
significant departure from past practice. When the FBI undercover agent or
informant is the only purported link to a real terrorist group, supplies the
motive, designs the plot and provides all the weapons, one has to question
whether they are combatting terrorism or creating it. Aggrandizing the
terrorist threat with these theatrical productions only spreads public fear and
divides communities, which doesn’t make anyone safer.[34]

In many of the sting operations we examined, informants and
undercover agents carefully laid out an ideological basis for a proposed
terrorist attack, and then provided investigative targets with a range of
options and the weapons necessary to carry out the attack. Instead of beginning
a sting at the point where the target had expressed an interest in engaging in
illegal conduct, many terrorism sting operations that we investigated facilitated
or invented the target’s willingness to act before presenting the
tangible opportunity to do so. In this way, the FBI may have created terrorists
out of law-abiding individuals.

In these cases, the informants and agents often seemed to
choose targets based on their religious or political beliefs. They often chose
targets who were particularly vulnerable—whether because of mental disability,
or because they were indigent and needed money that the government offered
them. In some cases—which have been particularly troubling for American
Muslim communities—targets were seeking spiritual guidance, and the
government informants or agents guided them towards violence. Relevant aspects
of these cases are described below.

Identifying Targets for
Investigation Due to Religious or Political Views

As previously noted, the FBI’s “radicalization
theory” appears to consider certain beliefs, sympathy with particular
causes, and even certain forms of religious expression as likely precursors to
terrorist activity.[35] While
there seems to be little evidence to support this theory—and there is a
great deal of disagreement among government agencies about the validity of
“radicalization theories”—the FBI appears to have relied on it
to such an extent that it has entirely subverted its traditional approach to
investigations.

In the 13 sting cases we examined closely, paid informants
and law enforcement officials relied on various political or religious
indicators to determine the extent to which a target was a potential threat.

Some of the cases we reviewed appear to have begun as virtual
fishing expeditions, where the FBI had no basis to suspect a particular
individual of a propensity to commit terrorist acts. In those cases, the
informant identified a specific target by randomly initiating conversations
near a mosque. Assigned to raise controversial religious and political topics,
these informants probed their targets’ opinions on politically sensitive
and nuanced subjects, sometimes making comments that appeared designed to inflame
the targets. If a target’s opinions were deemed sufficiently troubling,
officials concerned with nascent radicalization pushed the sting operation
forward. For example:

Case of the Newburgh Four:

In the “Newburgh
Four” case, one of the defendants, James Cromitie, first met FBI
informant Shahed Hussain in the parking lot of the Musjid Al-Iklhas mosque in Newburgh,
New York in June 2008. At the FBI’s direction, the informant had been
frequenting the mosque for months and trying to strike up conversations about
jihad with people there.[36]

Case of Shawahar Matin Siraj:

In this
case, Osama Eldawoody, a New York Police Department (NYPD) informant, first
identified Siraj as part of an assignment, which began in August 2003, to monitor
mosques in Brooklyn and Staten Island.[37]No publicly
available reports indicate that Eldawoody’s surveillance was based on
suspicion of criminal activity; on the contrary, Eldawoody’s reports to
his handlers merely covered demographics and religious behaviors, such as the
number of people at prayer services and the subject matter of sermons.[38] He met Siraj in September 2003 on one of his routine surveillance visits
to Brooklyn. At the time, Siraj was working at his uncle’s bookstore next
door to the Bay Ridge mosque to support his family after his father had become
disabled.[39] Eldawoody, 50, posed as a terminally ill nuclear engineer with deep
knowledge about Islam. He told Siraj that suicide bombings were forbidden in
Islam, but “killing the killers” was not.[40]He
also showed Siraj pictures of human rights abuses against Muslims. Siraj
described them in a letter written from prison:

[H]e showed me grotesque abuses
of the Muslim prisoners at Abu Ghraib and added his emotional voice as to not
wanting to die without a purpose, of cancer. Then while I was inflamed with
emotions at work, he would give me websites that I should visit when I got home
to keep me insighted [sic] overnight. On one occasion I was given a site where
a young Iraqi girl was being raped by an Amarican [sic] guard-dog. She was
terrified and it was a very inciteful [sic] experience to see that before
retiring at night. There were articles and photos of children mangled or
decapitated or burnt alive.[41]

Multiple sting cases we examined were initiated on the basis
of tips from citizens reporting Muslim religiosity as dangerous, or reports
that later proved unreliable. For example:

Case of the Fort Dix Five:

The
government claims that its case began on January 31, 2006, when a store clerk
contacted the FBI. As he was converting a customer’s VHS tape to a DVD,
the clerk saw men with beards, the brothers Dritan and Eljvir Duka, saying
“Allahuakbar” (God is Greatest) in Arabic at a shooting
range, and contacted the authorities.[42] But,
Mohamed Shnewer, one of the other defendants, had been in touch with FBI
informant Mahmoud Omar for months before the clerk called the police,
suggesting the sting operation had begun months earlier.[43]

Case of Rezwan Ferdaus:

Ferdaus came
to the attention of the FBI after an owner of a gun shop reported someone
“acting suspiciously.” Ferdaus was not the person in the store, but
the car’s license plate traced back to the Ferdaus family—leading
to the FBI questioning him at home in October 2010.[44]
On December 17, 2010, the FBI sent a confidential informant into a mosque
Ferdaus was attending in Worcester, Massachusetts.[45]

Case of Yassin Aref

Aref was the
imam of Masjid As-Salam, a small storefront mosque in Albany, New York. Aref,
originally from Kurdistan in northern Iraq, immigrated to the US in October
1999 as a refugee and settled in Albany.[46] He and
his wife Zuhur have four children. Prior to his arrest in August 2004, Aref had
no criminal record.[47] He had
served as imam of the Albany mosque for almost five years.[48]
The FBI first took interest in Aref when it found his name, Albany address, and
phone number listed in a notebook collected during a military raid in Rawah,
Iraq in June 2003.[49] The
notebook was written in Kurdish, but the FBI’s Arabic translator
incorrectly translated the word kak, a common word in Kurdish for
“brother,” as “commander.”[50]
Informant Shahed Hussain targeted Aref, as well as another Albany Muslim named Mohammed
Hossain, and the Albany mosque, starting in August 2003.[51]
The prosecutors claimed Aref was an Al-Qaeda operative throughout the trial and
appeal, despite evidence suggesting that Aref was not the operative the FBI had
believed him to be.[52]

In other cases, government agents
identified vulnerable young men and individuals with mental or intellectual disabilities,
and exploited their vulnerabilities. In some of those cases, informants met
young men in online chat rooms and engaged them in discussions, sometimes urging
them down the perceived path toward radicalization, as occurred in the cases of
Adel Daoud and Hosam Smadi, described further below. While it is true that
young men and individuals with mental or intellectual disabilities have, on
occasion, been involved in terrorism, and therefore cannot be ruled out for investigation,
there are special concerns when highly aggressive and invasive police tactics
are used on such vulnerable people.

Vulnerable Targets: People
with Mental, Intellectual Disabilities, Indigent People

The FBI appears to have frequently targeted particularly
vulnerable individuals with mental or intellectual disabilities. At least eight
of the defendants in cases we examined showed serious signs early on that they
struggled with mental or intellectual disabilities—diagnosed mental health
problems or significantly low intelligence or difficulty comprehending basic
concepts. These included:

Case of Shawahar Matin Siraj:

According
to his attorney, Siraj was more interested in cartoons than world affairs when
NYPD informant Osama Eldawoody began visiting him.[53]
Once Eldawoody showed Siraj grotesque pictures of abuses against Muslims, Siraj
described himself as “blinded” by emotions; Eldawoody reported to
his NYPD handlers that Siraj was “impressionable.”[54]
A forensic psychologist who evaluated Siraj for sentencing on behalf of the
defense described Siraj as having impaired critical thinking and analytical
skills, and diminished judgment. “Based on his intellectual
limitations” the expert said, “he is susceptible to the
manipulations and demands of others.”[55]

Siraj’s sister Saniya
described her brother’s juvenile interests, saying, “Every day he
would watch cartoons [and] play video games, Pokémon in
particular.”[56] Even
after his conviction, when he was placed in the Communication Management Unit
in Terre Haute, Indiana (see section VI), Siraj’s first request was
access to Pokémon.[57] Siraj
wanted to please Eldawoody, whose alleged terminal illness reminded him of his
father’s disability.[58] In late
June 2004, Siraj told Eldawoody that he was like a father to him. Eldawoody
reciprocated, telling Siraj he was like his son.[59]
The plot with which Siraj was eventually charged—to attack the 34th Street subway
station at Herald Square in New York City—took shape as Eldawoody began
planning with Siraj and Siraj’s friend, James Elshafay, a high school
dropout with an alcohol and drug problem, who was ultimately diagnosed with
paranoid schizophrenia with delusions.[60] Siraj
never quite agreed to the attack, saying he first had to ask his mother.[61]
Nonetheless, he was arrested on August 27, 2004 and eventually charged, in a
superseding indictment, with four counts of conspiring to attack the station
between June and August 2004.[62]

Case of Adel Daoud:

The son of immigrants,
Daoud was a 19 year-old student at his neighborhood Islamic high-school at the
time of his September 2012 arrest. His mother, Mona, said in an interview that Daoud
required extra assistance in school, and was heavily dependent on her:
“He's not the person with a complete mind. He didn't talk until five. He was
the last one of my kids to talk. He doesn't even talk Arabic….like the
rest of our family, because he's slow.”[63]

Without many friends at school,
Daoud was socially isolated and took refuge in the Internet, his parents told
us. According to the criminal complaint, Daoud came to the government’s
attention when he posted on online message boards and emailed material relating
to violent jihad.[64] In May
2012, less than six months after Daoud turned 18, two FBI online undercover employees
began emailing with him.[65] In
July, Daoud met with an undercover FBI employee.

In August, a member of Daoud’s mosque overheard him talking about jihad.[66]
The leader of Daoud’s mosque and his father told Daoud to stop talking
about these topics, and another local imam told him that engaging in violent
jihad was wrong.[67] Daoud
even discussed the topic of jihad with his mother at home, who told us:

He asked “What [is] jihad?”…
We tried to explain there is no jihad here. …. I told him when you give
money to the poor, this [is] jihad. When you stay with your mother and father
who need you, this is jihad. And he was so convinced, he said, “I’ll
stay with you mom.”[68]

At this point, Daoud hesitated
about what was religiously proper, and sought further religious guidance from
the undercover employee, asking if his sheikh overseas could issue a fatwah
(religious decree) justifying attacks on Americans.[69]
The undercover employee told him his sheikh could not provide the fatwah and
continued to plan the plot with Daoud.[70] On
September 14, 2012, the undercover employee drove Daoud to downtown Chicago, to
a green jeep loaded with fake explosives.[71] Daoud
drove the jeep to the target location—a bar in downtown Chicago.[72]
Daoud exited the jeep and attempted to detonate the device, after which he was
taken into custody by the FBI.[73]

Mona Daoud expressed her confusion
at the government’s pursuit of her son, contending that he would not have
been capable of such a plot on his own:

They say that he went downtown.
He's never been downtown in his life.…'Til now when I tell them how to go
to Jewel [a grocery store less than a mile from the Daoud home], he gets lost.
I have to tell his little sister to go with him.[74]

Case of Hosam Smadi:

The FBI first
identified Smadi on a website promoting terrorism in January 2009.[75]
Undercover FBI agents initiated correspondence with him, first online and then
later in person. During their written correspondence, Smadi repeatedly
emphasized that he did not know much about Islam, did not want to hurt innocents,
and wanted to learn more about Islam before proceeding with any violence.[76]
Yet rather than encourage these views, the FBI appears to have encouraged him
to pursue violence.

Throughout the government’s
correspondence with Smadi, an FBI behavioral analyst assessed his progress
along the “radicalization spectrum.” For example, on April 28,
2009, the analyst noted that Smadi was “experiencing anger
displacement” from his mother’s death, and that he was
“motivated to please his father.”[77] The
analyst further noted, “[h]is mother’s death places him at the
first stage of the radicalization process known as pre-radicalization.”[78]
The analyst also noted Smadi’s discussions on “jihadist”
websites, noting that Smadi’s “singular nature of Internet use,
affirms a hypothesis—SMADI is acting as a lone wolf exhibiting three of
the four stages of the radicalization process 1) pre-radicalization, 2)
identification and 3) indoctrination.”[79]

In May, after viewing a video tape
of Smadi’s first in-person meeting with a government agent, the FBI
analyst recommended that the government agent should act more like a
facilitator than a leader, noting that the agent was dominating the
interaction. The agents encouraged Smadi to select a target and make plans for
an attack, and praised him any time there was a move toward violence.[80]

After months of correspondence and
meetings with government agents, Smadi agreed to take an explosive device
(built by the government agents) to a parking garage under Fountain Place in
Dallas, a large building which contained five banks and was made of glass.
Smadi drove what he believed to be an explosive to the parking garage and then
met an undercover agent in a waiting car.[81] From
the car, he dialed a number on his cell phone that he believed was a code to
detonate the explosive.[82] Smadi
was charged with attempted use of a weapon of mass destruction and bombing a
place of public use.[83] In May
2010, he pleaded guilty to attempted use of a weapon of mass destruction, and
the government dropped the bombing charge.[84] He was
sentenced to 24 years in prison.[85]

Case of the Newburgh Four:

two of the
defendants in this case, James Cromitie and Laguerre Payen, had some history of
mental disability. Cromitie was a former drug addict who had reportedly
admitted to a psychiatrist that he heard and saw things that were not there.[86]
Payen was diagnosed with schizophrenia[87] and
after his arrest in May 2009, police found his apartment strewn with bottles
full of urine.[88] He did not show the intellectual aptitude to
conduct a terrorist attack, telling others that he could not join a trip to the
state of Florida to plan for the attack because he did not have a passport.[89]

Case
of Rezwan Ferdaus

On September
28, 2011, the FBI arrested Rezwan Ferdaus for a plot to attack the Pentagon
and the Capitol building with remote-controlled airplanes packed with
explosives. Yet he had severe mental health problems that even the FBI had
acknowledged, raising questions about whether he would have been capable of
following through with any plans on his own.

Ferdaus
was born in 1985 to parents who had immigrated to the United States inspired
by what they saw as its economic opportunity and political freedoms.[90] His father, a Muslim from
Bangladesh, was a defense contractor. His mother, a Catholic of Portuguese descent
raised in Angola, worked for the Massachusetts Department of Transitional
Assistance. Ferdaus’ parents and high school classmates describe him as
a good student, and as having a typical American childhood in which he played
sports and the drums in a band called Goosepimp.[91]

Ferdaus’
parents told us that they began to have concerns about his mental health in
late 2009. They suggested he see a psychiatrist beginning in early 2010, but
he refused.[92] In October 2010, Ferdaus was
questioned at home by FBI agents. An owner of a gun shop had reported someone
acting suspiciously. Ferdaus was not the person in the store, but the
car’s license plate traced back to the Ferdaus family—leading to the FBI
questioning him.[93] Showket Ferdaus, Rezwan’s
father, who was present for the questioning, said that at the end of the
meeting an FBI agent “told me, standing in the garage of our house, ‘obviously
[Rezwan] has mental issues.’”[94]

On
December 17, 2010, the FBI sent a confidential informant into a mosque
Ferdaus was attending in Worcester, Massachusetts.[95] Ferdaus and the confidential
informant, a repeat criminal offender, communicated for several months. In
March 2011, the informant introduced Ferdaus to two FBI undercover employees
who posed as Al-Qaeda operatives. In May, Ferdaus traveled to Washington, DC,
on a trip paid for with money from the informant—to perform surveillance of
the targets in the “attack plan” on the Pentagon and Capitol
building.[96]

Throughout
the FBI operation, Ferdaus continued to manifest mental and physical health
problems, including loss of control over his bladder, which began in December
2010. Showket Ferdaus described his son’s deterioration:

He had
lost a lot of weight, his cheek bones were visible and eyes were always red.
He was highly irritable and sometimes disoriented. We again, suggested him to
go see a doctor but he refused…. By March 2011, he gave up, no matter
how demeaning it was, and agreed to wear diapers. I started buying 28 packs
man’s diapers, which he was using up in just four or five days.[97]

Ferdaus’
father recalled an incident on February 11, 2011,[98] in which a person called the
police to report that “there was a man [Ferdaus] in the road who
wouldn’t move and appeared to have wet his pants.”[99] In a previous police report from
the same month, Ferdaus was described as “disheveled.”[100]

In April
2011, Ferdaus father retired from his job in order to look after his son; he
told us that Ferdaus “never smiled for two years, he was so sick, so
very depressed.”[101] Ferdaus’ father recalled a
specific incident in July 2011 when Ferdaus started shaking, “almost
like he was having a seizure”; Ferdaus reportedly told his father that
he was having “intrusive thoughts and cannot get rid of them.”[102] The following month, Ferdaus finally
agreed to go to a mental health professional, and began taking medication for
diagnosed depression.[103] Two weeks before his arrest,
Ferdaus began taking a double dosage of his medication, as recommended by
several psychiatrists he was seeing.[104] Ferdaus’ father described
his sense of hope at that time: “I could feel, he had started to
believe that he would be better when he start[ed] to take medicine.
Obviously, his mother and I were ecstatic.”[105]

The FBI
arrested Ferdaus on September 28, 2011, after FBI undercover employees
delivered weapons to him and photographed him holding a gun.[106]

On July
20, 2012, Ferdaus pleaded guilty to attempting to damage and destroy a
federal building by means of an explosive and attempting to provide material
support for terrorism. Pursuant to the plea deal, he was sentenced to 17
years in prison, with 10 years of supervised release.[107] Today he is at Terre Haute, a
medium security facility in Indiana.

Case of the “Portland Seven”:

The case against the “Portland Seven” is different from other
informant cases because the informant was introduced after most of the alleged
criminal conduct had already occurred. In the immediate aftermath of the
September 11 attacks, six men flew from Portland to Hong Kong; from there they
traveled to western China in an attempt to get to Afghanistan. After several
unsuccessful attempts to get into Afghanistan, the group dispersed.[108]
While the men were abroad, October Lewis, wife of defendant Jeffrey Battle,
wired money to the group (she was later charged as the seventh defendant).[109]
Most of the men eventually returned to Portland.

After Battle returned to Portland,
the FBI sent confidential informant Khalid Mustafa to befriend some of the men
and obtain evidence of criminal conduct. Mustafa had previously been charged
with drug and weapons offenses, but the charges were later dismissed due to his
cooperation with the Portland Seven investigation.[110]

The primary focus of the case was
the attempted travel to Afghanistan—allegedly to support the Taliban and
Al-Qaeda—conduct that had long since been completed by the time the
informant was introduced.[111]
However, while the informant did talk to the men about details of the
group’s travel to China, it is troubling that the informant seemed to
hone in on Battle—who may have had a mental disability—in an effort
to elicit inflammatory statements from him. During recorded conversations,
Battle made several references to shooting up Jewish schools and synagogues, saying,
“So if every time they hurt or harm a Muslim over there, you go into that
synagogue and hurt one over here.”[112] Battle
reportedly rejected those ideas in subsequently recorded conversations.[113]

John Ransom, lawyer for October
Lewis, told Human Rights Watch:

What really bothered me about
this case was that Battle is the one the informant went after. Battle is mentally
ill.… The informant would say inflammatory things … and Battle
would agree and then really get going. And then these are the statements that the
prosecution [used] to paint a picture of Battle’s character. It seemed as
if the informant had been put on [Battle] for the purpose of getting these
outrageous statements.[114]

Prosecutors
eventually used these statements against not only Battle, but also other
members of the group—even though they had little bearing on the focus of
the case, which was supposedly the travel to Afghanistan.

As
one of the first wave of post-September 11 terrorism prosecutions, the case was
politically charged from the beginning. On October 4, 2002, then-Attorney
General John Ashcroft called a press conference and announced the arrest of the
original co-defendants in the Portland Seven case, a guilty plea entered by
Richard Reid, and the sentencing of John Walker Lindh:

Today
is a defining day in America's war against terrorism. We have neutralized a
suspected terrorist cell within our borders, convicted an attempted suicide
bomber, and an American pledged, trained and captured in violent jihad is
sentenced.[115]

There was no evidence that the
defendants formed a terrorist “cell”—few had been in contact
with each other after their return to the US. Kent Ford, the father of Patrice
Lumumba Ford, recalled how the television and print news ran coverage of the
Ashcroft press conference all weekend, showing “real fear-mongering
stuff.”[116] The
handling of the case was certainly influenced by the immediacy of terrorism
concerns after 9/11 and the newness of federal terrorism-related prosecutions.
Prosecutor Charles Gorder told Human Rights Watch, “There was little
legal precedent that gave us guidance [at the time]. We had to anticipate where
the law was going to move.”[117]

Between September 6 and October
16, 2003, the six defendants in detention[118] all
pleaded guilty, to varying charges, resulting in sentences of three years for October
Lewis, seven years for Maher Hawash, eight years for Muhammed Bilal, ten years
for Ahmed Bilal, 18 years for Patrice Lumumba Ford and 18 years, later extended
to twenty, for Jeffrey Battle (the latter two pleaded guilty to conspiracy to
levy war against the United States).

In at least two cases that we examined, an
informant—Shahed Hussain, the same in both cases—offered the
defendants money to entice them to participate in the plot. These are:

The Newburgh Four:

Forty-five-year-old James Cromitie was struggling to make ends meet when, in
2009, FBI informant Hussain offered him as much as $250,000[119]
to carry out a plot which Hussain—who also went by “Maqsood”—had
constructed on his own.[120] The
plot involved firing rocket-propelled grenades at Stewart Air Base and placing
bombs at a synagogue in Riverdale, New York. Cromitie initially responded
enthusiastically, slapping hands with the informant.[121]
Still, Cromitie was wary of proceeding with the plot and refused to speak to
the informant for several weeks. But Cromitie had lost his job at Walmart and
his financial situation became dire. He eventually called the informant to tell
him he was broke and needed to make money. The informant immediately reiterated
his original offer: “I told you, I can make you $250,000, but you
don’t want it brother. What can I tell you?” The transcript
indicates that Cromitie agreed to see him.[122]

The promise of financial reward was
also crucial to the recruitment of the other three members. Cromitie relayed
the informant’s offer to David Williams, insisting that he would share
the spoils with Williams to help with his sick brother’s medical costs.[123] Williams’ younger brother was sick
with liver cancer and in need of a new liver. The pair drew in Laguerre Payen
and Onta Williams with similar promises. The FBI also authorized the informant
to separately offer money to the other men to participate in the plot, which he
did, even distributing small amounts of cash for cell phones, rent, meals and
groceries.[124] The
informant frequently promised much more to come upon completion of their
“mission.”[125]

Yassin Aref and Mohammed Hossain:

As
in Newburgh, informant Shahed Hussain presented himself to the Albany community
as a wealthy businessman.[126]
Mohammed Hossain, a member of the Albany mosque, needed money to fix his
properties and run his pizza shop, which Shahed Hussain—who went by the
pseudonym “Malik”—readily offered.[127]

The informant proposed to lend
Hossain $50,000 in cash so long as he paid him back $2,000 monthly until he had
paid back $45,000.[128] He
offered Hossain the remaining $5,000 as a gift. In keeping with Islamic
religious requirements pertaining to borrowing money, Hossain would take the
loan without interest, and proposed that Yassin Aref, then imam of the mosque,
serve as the witness to the loan transaction.[129]

The informant at times told Hossain
that he had the $50,000 to lend from legitimate business deals.[130]
But, on other occasions he also indicated that the money came from buying and
selling a Chinese surface-to-air missile, which was to be given to a group
called Jaish-e-Mohammed (JEM). FBI Agent Thomas Coll, who handled the informant
during the investigation, explained that he suggested the informant talk about
JEM because it was based in Pakistan and the informant was Pakistani, so
“it would be a good cover story.”[131]
Neither Hossain nor Aref had any preexisting relationship with JEM.[132]
The informant implied that giving these loans to Hossain was beneficial for
business purposes and that he was involved on the side with the sale of
ammunition.[133] The
government argued that the informant thereby offered both Hossain and Aref the
opportunity to engage in illegal money laundering, for the benefit of JEM. Yet
the government itself argued that Hossain’s motive for participating in
the loan transaction was money and that Aref was motivated by religious duty.[134]
Aref's primary concern appeared to be in witnessing the loan transaction
between Hossain and the informant, and ensuring there was proper documentation.[135]
When the informant pulled out the missile's trigger—a rectangular
metallic box—during a video-recorded meeting about the loan transaction
in January 2004, Aref appeared preoccupied with counting the money the
informant had handed him.[136] Aref
argued that this was because he was not privy to the discussion about the
missile transaction; the prosecution argued that it was because he was callous
to it.[137] Throughout
the sting operation, Aref appeared uninterested in Malik’s attempts to
discuss terrorist organizations. In response, Aref would simply give his
opinion, as an imam, on whether Malik’s conduct was appropriate according
to Islam.[138] Both
men were convicted and sentenced to 15 years on charges of material support and
money laundering.[139]

Indeed, in cases we examined, several defendants[140]
were seeking money when the government approached them; some were extremely
poor, others were even homeless. Their continued participation in the
government plot ensured periodic payments and, for some, additional money upon
accomplishment of the plot.

Vulnerable Targets:
Individuals Seeking Religious Guidance

In some cases we examined, a government agent appears to have
taken on the role of a religious authority figure for a target who was
searching for guidance about Islam because he was young, a recent convert, or
socially outside the mainstream Muslim community due to race or ethnicity.

These cases are particularly troubling to many in American
Muslim communities, where members feel law enforcement is exploiting the very
paranoia described in detail in section VII. In some cases, the FBI employed versions
of Islam when interacting with the target that led targets towards specific
mindsets and actions. For example:

Case of the Fort Dix Five:

According
to his family and friends, Mohammed Shnewer, who was 19 years old when
informant Mahmoud Omar first approached him, was a loner.[141]
Omar was 40 years old and exerted a powerful influence over Shnewer as the two
became friends. He hounded Shnewer to collect and burn to DVD videos depicting
jihad-oriented violence; he even purchased, with FBI funding, a DVD burner for
Shnewer.[142]

The fact that Shnewer watched these
videos with the informant, and the existence of some of the violent videos
themselves, was used against Shnewer at trial. Omar also regularly initiated
conversation about politics, and encouraged Shnewer to turn from non-violent
actions, like prayer, to action. In an August 1, 2006 recorded discussion
between Shnewer and Omar, Shnewer brought up the conflict in Chechnya. Omar
said, “Well then, what shall we do?” Shnewer, suggesting prayer,
replied, “Call upon our lord.” Omar replied, “Should we pray
only, Mohamed?” Omar also rejected Shnewer’s suggestion to provide
charity and continued to push Shnewer to suggest something more tangible. Under
Omar’s persistent pressure, Shnewer suggested a potential target to the
informant: “If you want to do anything, there is Fort Dix.”[143]

Eventually, Mohamed Shnewer and
four others were indicted in 2008 for conspiracy to murder members of the US
military and possession of firearms.[144] On December 22, 2008, all five men were
convicted; Shnewer was sentenced life in prison.[145]

Case of Barry Bujol:

Bujol was raised
in a devout Baptist family in Louisiana. He converted to Islam as a student at
Prairie View A & M. Tariq Ahmed, a lawyer with the Muslim Civil Liberties
Union (MCLU) in Houston, told us that “Bujol was sincerely thinking about
Islam and his obligations when he came about the topic of jihad,” but he
couldn’t get answers from the local community, which feared that the
African-American convert might be an informant (another member of their
community, Adnan Mirza, had been recently investigated and prosecuted—his
case is also discussed in this report).[146]

In mid-2008, FBI agents pursuing a
tip about someone else came across Bujol’s email address and found that
he had been in contact with Anwar Al-Awlaki—an alleged leader of Al-Qaeda
in the Arabian Peninsula (AQAP), which is based in Yemen, and an American
citizen, killed by a US drone strike in 2011.[147]
Bujol had reached out to Al-Awlaki after listening to one of his earlier
recorded CD sermons. Al-Awlaki forwarded to Bujol his book 42 Ways of
Supporting Jihad.[148] Bujol
responded at least three times seeking further guidance.[149]

After placing Bujol under extensive
surveillance for more than a year,[150] in
about November 2009 the FBI planted a Muslim of Arab descent as a confidential
informant (CI) in a jail cell alongside Bujol, who had been picked up for
outstanding traffic tickets.[151] Bujol
and the informant stayed in contact, and the informant told Bujol he was an
operative for AQAP. MCLU attorney Ahmed raised concerns about the
informant’s profile and his relationship with Bujol:

From the very first recording you
hear the CI asking questions about Islam, and you have Barry giving perfectly
acceptable [non-violent]… responses. And the CI’s instinct is to
correct Barry. You can almost see Barry’s face, he doesn’t resist,
he just accepts it and tries to justify or accept what the CI said was the
correct answer.… The effect on Barry was profound. Someone was finally
willing to answer his questions.[152]

Daphne Silverman, Bujol’s
attorney at sentencing, said the informant encouraged Bujol to turn from
“defensive jihad,” related to the self or community, to
“offensive jihad,” marked by proactive violence. “Barry had
always believed he had to participate in defensive jihad, but the CI told him he
has to do this,” she said.[153] Also,
despite the FBI’s instructions, the informant offered Bujol a job and
gave money to his wife, telling him that “people” would support her
while Barry was overseas.[154]

Mark Wells White, a federal
prosecutor on the Bujol case during the investigation and original plea
negotiations, disputed any concern about the FBI’s investigative tactics:
“Why did your guy get a bunch of stuff from [someone who said he was] an
AQAP operative? Why did he get on a boat?”[155]
White also defended the informant’s conduct as “rapport-building.”[156] White explained, “Barry was asking him
questions [about religion, jihad], and the CI has to answer. He can’t
blow his cover.”[157] But
several defense advocates told us that the CI’s responses did not
accurately represent the mainstream Muslim advice that Bujol would have gotten
had community members been available and willing to talk.[158]

With the encouragement of the
government informant, Bujol eventually agreed to participate in a plot. A SWAT
team arrested Bujol in May 2010 when, using a false ID provided by the
informant, Bujol tried to board a ship with money, army manuals, phone cards,
and GPS units that the informant told him to carry to an AQAP contact in
Algeria.[159] Bujol
was arrested, and, after a bench trial, sentenced to 20 years in prison for
attempting to provide material support to AQAP and aggravated identity theft.[160]

Informants Ignoring Targets’ Reluctance to
Engage in Terrorism

In several of the cases we examined, after identifying their
targets and cultivating them over months of close, intimate interaction,
government agents proposed new theories, ideas or—eventually—plots
to see if their targets might take the bait. If they did, the government
appears to have considered itself vindicated in its early assessment of the
individual’s underlying threat.

The government appears unconcerned with whether these
individuals would have actually had the interest, commitment, and ability to
plan terrorist attacks without informants’ aggressive recruitment or
cultivation. On the contrary, in some cases where the defendant initially or
repeatedly expressed a reluctance to engage in violence generally or even, in a
planning stage, to go through with the plot, informants ignored those
statements and instead pressed them to stay with the plot. For example:

Case of Shawahar Matin Siraj:

There
are many indications that Siraj was hesitant to carry out the bombing in the
days immediately leading up to it. When Eldawoody drove Siraj toward the 34th
Street subway station where he would instruct Siraj to place false explosives
in garbage cans, Eldawoody asked Siraj if he was committed to their plan. Siraj
said he would not participate if the situation seemed dangerous.[161]
“I have to, you know, ask my mom’s permission. Every single thing
matters, you know?”[162] said
Siraj (who, as previously noted, was found to have impaired critical thinking
skills and diminished judgment). Siraj also emphasized that he would prefer to
be a lookout to placing what he believed to be explosives in the subway.[163]
When the informant asked, “You willing to do it?” Siraj responded:
“I will work with those brothers, that’s it. As a planner or
whatever. But to putting them there? I’m not sure. I have to think about
it.”[164]He was arrested a
week later.

Case of the Newburgh Four

Early in
their relationship, James Cromitie was quick to engage the informant, Hussain,
in hateful rhetoric and to fabricate lofty stories of past violence, including
tall tales that involved shooting a drug-dealer’s son and firebombing
NYPD stations.[165] Still,
the informant had to expend considerable efforts to overcome Cromitie’s
resistance to using violence.[166] For
months, the informant encouraged Cromitie to turn his tough talk into action,
but Cromitie refused,[167] even,
initially, upon the offer of valuable incentives.[168]
In many of their conversations, the informant responded to Cromitie’s
expressions of anger by urging him toward violence in the name of Islam.[169]
Cromitie, however, repeatedly explained that it was not for him to act since
“Allah will take care of it.”[170] At one
point, when the informant continued to insistent on jihad, Cromitie responded
that dying like martyrs is “not gonna change anything.”[171]
As the trial judge, District Judge Colleen McMahon, noted in her decision:

Hussain tried to coax Cromitie
into participating in a jihadist event by suggesting that he would be rewarded
in the afterlife. But the promise of Paradise proved insufficient to get
Cromitie to take any affirmative steps toward planning a jihadist attack. On
December 10, Hussain pointed this out to Cromitie; defendant responded, “Maybe
it’s not my mission then. Maybe my mission hasn’t come yet.”[172]

Even after the informant offered
Cromitie $250,000 to carry out an attack, Cromitie appeared hesitant and disappeared
for six weeks, refusing to speak to the informant, despite the
informant’s constant efforts to contact him. Cromitie sold a $200 camera
that the informant had bought him for surveillance of Stewart Air Base for
around $60.[173] But he
had lost his job at Walmart, and eventually returned to the informant, who
reiterated his offer. In the same conversation, the informant told Cromitie
that he was concerned for his own safety, and hinted that harm could come to
Cromitie as well if he failed to engage in a terrorist attack.[174]
Cromitie then said he was willing to go forward with Hussain’s plan, but
he did not want anyone to get hurt.[175]

Informants Playing Key Roles in Generating or
Furthering the “Plot”

In the cases examined, we found that informants not only
encouraged targets to engage in violence, but came up with the
“plot” themselves, and provided the targets with the means to carry
it out. For example:

Case of Newburgh Four:

In this case,
the FBI informant came up with a plot to detonate explosives near a synagogue
in the Bronx and to shoot military targets at Stewart Air National Guard Base
in Newburgh, New York. He also played a primary role in preparing the plot and
inducing action (including through the offer of substantial financial rewards)
by the defendants. As Judge Reena Raggi put it in reviewing the case on appeal
at the US Court of Appeals for the Second Circuit, “The government came
up with the crime, provided the means, and removed all relevant
obstacles.”[176]

Indeed, Cromitie was not even able
to buy a gun in Newburgh, although Hussain, the informant, had asked him to do
so more than a dozen times.[177]
Hussain had to choose the targets, provide the plot and the weapons, and direct
the recruitment of the other participants. He even had to drive them from place
to place in order for them to carry out the simple missions he assigned them,
such as photographing the targets and “inspecting” the weapons.[178] As trial judge McMahon put it:

The essence of what occurred here
is that a government, understandably zealous to protect its citizens from
terrorism, came upon a man both bigoted and suggestible, one who was incapable
of committing an act of terrorism on his own.… I suspect that real
terrorists would not have bothered themselves with a person who was so utterly
inept. … Only the government could have made a terrorist out of Mr.
Cromitie, whose buffoonery is positively Shakespearean in scope.[179]

Despite her strong statement,
McMahon sentenced each of the defendants to 25 years in prison, based on a
mandatory minimum required for Hussain’s plot to target a military target
(see section V).[180]

Case of Rezwan Ferdaus:

As previously
noted (see above), Rezwan Ferdaus appeared to have suffered from physical and mental
disabilities that raise serious doubts as to whether he would have been capable
of carrying out the plots he was charged with. Miriam Conrad, the Boston
federal defender and Ferdaus’s attorney through sentencing, explained
that since Ferdaus had no money, the preparation and materials for the plot for
which he was arrested—to attack the Pentagon and Capitol
building—were all provided or financed by the undercover employees:

At the time he was in contact
with the informant and the undercover [agent] he was living at home with his
parents in Ashland and he didn’t have a car, he didn’t have any
money and he didn’t have a driver’s license because he owed $100
and he didn’t have $100 to pay off the fine. In various parts of the investigation
he didn’t have a laptop and he didn’t have a cellphone. At one
point the informant gave him a cell phone.[181]

Case of Adnan Mirza:

For his entire
five years in Houston, Mirza was an active member of the Muslim community,
working to bridge gaps with non-Muslims in southeastern Texas by serving the
needy,[182] and
was part of a group that provided cultural sensitivity training to the Houston
Police Department about Islam.[183]

In 2004, Customs and Border Patrol
officials in Big Bend National Park stopped two of Mirza’s friends in a
car, and found weapons. The FBI interviewed both friends; one of them was Jim
Coates—who worked with Mirza on the “Why Islam” campaign that
sought to educate people about Islam to reduce negative stereotypes and
perceptions.[184] Coates
agreed to become a paid informant for the FBI. In 2005, the government
introduced an undercover agent named “Malik Mohammed” to the group
of Coates, Mirza, and co-defendant Kobie Williams. Mohammed posed as someone
with a military background who specialized in teaching hand-to-hand combat.[185]
The group regularly went to a camping area in Willis, Texas, where they
barbecued, shot at a shooting range, and engaged in discussions on a variety of
topics, ranging from women to group travel to Afghanistan.[186]
Based largely on their conversation, the prosecution in the case against Mirza
alleged that these were “training camps” to prepare Mirza and his
friends to go to Afghanistan and fight against US forces.[187]

According to the defense and
Mirza’s acquaintances, though, these activities were far less menacing—little
more than men going camping, with the shooting and “military
training” sessions suggested and encouraged by the FBI agents.
Mirza’s attorney, David Adler, told Human Rights Watch that even at the
most egregious moments of discussion, it seemed to him “similar to
rednecks sitting around talking about the IRS.”[188]

Nonetheless, Mirza was eventually
charged with eight counts of weapons charges and one count of conspiracy to
provide material support.[189]
According to the prosecution, Mirza was the ringleader in collecting around
$1,000—provided by the FBI agents and co-defendant Williams—that he
handed to a middleman with the intent that it go to families of Taliban fighters.[190]
According to the defense at trial and several of Mirza’s acquaintances,
the money was intended for a hospital in Pakistan. On cross-examination, the
FBI agent admitted that Mirza never made a recorded statement about wanting the
money to go to the Taliban; however, there were recorded statements about the
money going to a hospital or to families in Pakistan.[191]
The prosecution argued, through recordings of the group’s conversations,
that the hospital was a cover for getting the money to the intended
beneficiaries: the Taliban or the Taliban’s families.[192]

The remaining eight counts related
to the handling of various guns and ammunition. For all but one of the
gun-related charges—a shotgun Mirza personally owned—the possession
occurred because the FBI agents brought the guns to the camping sites and
provided them to Mirza to fire.[193]

According to an FBI agent’s
own testimony, there was no evidence that Mirza wanted to practice shooting
before the FBI informant came up with the idea.[194]
There was no evidence Mirza was interested in meeting someone with a military
background before the FBI introduced an undercover agent with that profile.[195]
Coates, the paid informant, appears to have initially suggested the idea of
traveling overseas.[196] The
informant and FBI undercover agent directed all aspects of the training.[197]
And the FBI agents then handed Mirza the guns, and encouraged him to shoot the
guns, that would provide the basis for many of the later charges against him.

On November 28, 2006, Mirza was
arrested. After a four-day trial, the jury found Mirza guilty of all nine
counts. He was sentenced to 15 years in prison.

Involving
Third Parties in Conspiracies: The Case of the Fort Dix Five

Mohamad
Shnewer, Serdar Tatar, and the brothers Dritan, Eljvir, and Shain Duka were
indicted in 2007 for conspiracy to murder members of the US military and
possession of firearms.[198] Then-US attorney Chris Christie
(now governor of New Jersey) praised law enforcement efforts as though a
genuine plot had been stopped by detective work.[199]

In fact,
the investigation involved two paid informants, more than a year of fruitless
surveillance, and the dubious linking of an illegal gun purchase to a plot of
which only two of the defendants were aware. After pressing 19-year old
Mohammed Shnewer to come up with a plot to attack Fort Dix, the informant,
“Mahmoud Omar,” said they would need more support to pull off an
attack.[200] Shnewer offered to recruit the
Duka brothers, but there is no indication that the informant Omar or a second
informant on the case, Besnik Bakalli, ever spoke directly with the Dukas
about an attack. At trial, Omar stated that he did not believe the Dukas knew
about the Fort Dix plot.[201] Instead of direct conversation
with the Duka brothers, Omar would inquire with Shnewer to the progress of
the recruitment, and Shnewer would give alternating reports of progress.
These conversations occurred in Arabic, which the Duka brothers do not speak.

The
informant Omar also cultivated a relationship with defendant Serdar Tatar.
Tatar was suspicious of the informant and reported him as a potential
terrorist threat to a Philadelphia police sergeant who frequented the 7-Eleven
convenience store where Tatar worked.[202] The police officer helped Tatar
report Omar to the FBI.[203] However, Tatar ultimately provided
Omar a map of Fort Dix which he had because his father’s pizza shop
delivered to it.[204] It is unclear why Tatar provided the
map to Omar.

Tatar
aspired to become a law enforcement officer himself, and was in the process
of applying to multiple police departments.[205] A month passed between the time
Omar first requested the map, and when Tatar actually gave it to him. Tatar
claims that by stalling and eventually providing the map to Omar, he was
attempting to support law enforcement efforts.[206] Tatar, for example, had made
recordings of Omar at their mosque, which he attempted to present to the FBI.[207]

During the
same period, the FBI deployed another informant named Besnik Bakalli, who
befriended the Duka brothers.[208] Bakalli pretended to be seeking
guidance on Islam and help in turning his life around.[209] The Duka brothers embraced
Bakalli, a fellow Albanian, as someone who needed assistance and a sense of
family.[210] As their relationship developed,
Bakalli repeatedly asked the brothers about jihad, and whether it included
violent acts. The brothers repeatedly told Bakalli that jihad was non-violent
struggle to sustain their families and livelihood in the US.[211]

Bakalli
also accompanied the brothers on paintball trips in the Poconos and Cherry
Hill. On one trip during a holiday weekend in 2006, Bakalli asked each
brother, “We’re training, right?” According to the
brothers, they answered no and were surprised at the question.[212] However, at trial their paintball
trips were used to support the government’s claim that they were
training for jihad.[213] The recordings of the
informant’s conversations, inexplicably, leave off the period of time
during which these particular conversations occurred.

In
addition to the illegal gun sale, the government's case against Tatar and the
Dukas was based on various pieces of evidence introduced at trial, including
videos of attacks on US troops abroad found on Mohammed Shnewer's laptop,
which prosecutors claimed served as inspiration and guidance for the Fort Dix
operation. Prosecution expert witness Evan Kohlmann (see section IV) tried to
connect these videos with the paintball and trips to the Poconos; he also tried
to portray the acquisition of guns as evidence of jihadist activity. None of
the prosecutors in the case responded to requests for comment.

All five
men were convicted on December 22, 2008. Mohamad Shnewer and two of the Duka
brothers were sentenced to life plus 30 years; Eljvir Duka was given a life
sentence, and Serdar Tatar was sentenced to 33 years.[214]

Informants with Criminal Histories

In the cases we reviewed, the FBI frequently used informants
with criminal records who were known to be unreliable witnesses who engaged in
highly questionable tactics.

The most notable example is Shahed Hussain, informant in the
Newburgh Four and Yassin Aref cases, who admitted at one trial that by the time
he was recruited by the FBI he had committed no fewer than 50 frauds.[215]
In the case of the Newburgh Four, as noted above, Hussain offered James
Cromitie $250,000 to carry out a plot, apparently without authorization of his
FBI handlers.[216] The
trial judge concluded that Hussain committed perjury at the trial, though the
appeals court concluded that Hussain’s perjury did not affect the
verdicts because his testimony was immaterial.[217]
Hussain also admitted on cross-examination at the Newburgh trial that he had
lied to his FBI handler about a conversation with a defendant on at least one
occasion.[218] Yet
the FBI continued to use him as an informant, including for a third sting operation
in Pittsburgh.[219]

Other informants with criminal histories included
“Khalil,” informant in the Ferdaus case, and Mahmoud Omar,
informant in the Fort Dix case.[220]

Human Rights Concerns

The FBI investigation tactics described in this section
raise serious human rights concerns, including discriminatory treatment on the
basis of the target’s protected political and religious expression and
association, and violation of the right to fair trial due to criminal
entrapment.

Under international law, a government may restrict freedom
of association, expression or privacy for national security purposes within
strict limitations.[221]
However, a government may never do so in a discriminatory manner.[222]The UN Human Rights
Committee, the international body of experts that monitors state compliance
with the International Covenant on Civil and Political Rights (ICCPR), has repeatedly
highlighted that restrictions on freedom of expression and privacy must be necessary to achieve a legitimate aim, and be
proportionate to the aim pursued.[223]

Pursuing sting operations on the basis of individuals’
religious practice or political beliefs violates the obligation under
international law that investigations and prosecutions be impartial, and
conducted in a non-discriminatory fashion.[224] Such
investigations may also have a chilling effect on others’ exercise of
their basic rights.

What Constitutes Entrapment?

The United States is obligated to provide criminal defendants
with fair trials, both under US constitutional law and international human
rights law.[225]
So-called entrapment—where the government creates the opportunity for
criminal activity, encourages an otherwise law-abiding person to engage in it,
and then prosecutes him for it—may violate fair trial rights. US law
allows criminal defendants to raise the affirmative defense of entrapment, but may
not adequately protect their rights to fair trials.

Under US law a defendant can avoid criminal liability by
showing both that the government induced him to commit the act in question and
that he was not “predisposed” to commit it.[226]
This “predisposition” inquiry focuses attention on the
defendant’s background, opinions, beliefs, and reputation—in other
words, not on the crime, but on the nature of the defendant. In effect, it asks
whether the government induced a good person or a bad one, and leaves that
character determination to the jury.[227] This
character inquiry makes it exceptionally difficult for a defendant to succeed
in raising the entrapment defense, particularly in the terrorism context, where
inflammatory stereotypes and highly charged characterizations of Islam and
foreigners often prevail. Indeed, no claim of entrapment has been successful in
a US federal terrorism case to date.[228]

In several cases we examined, political and religious views
often appear to have been the primary “predisposition” leading authorities
to conduct prolonged sting operations in which the authorities played a
significant, if not leading, role in planning and financing the ultimate plot,
raising serious fair trial concerns. For example, in the Matin Siraj case (see section
IV), the evidence submitted by the prosecution to prove Siraj’s
predisposition included a range of political statements including his empathy
for Palestinian suicide bombers living under occupation, and his fascination
with Osama Bin Laden. Particularly given the heightened jury emotions in
terrorism cases, defense attorneys believe that it would be impossible to win
on entrapment grounds.[229]

In contrast with US law, the European Court of Human Rights
(ECtHR) of sting operations focuses on the whether inducement (also described
as “incitement”) to a crime occurred—calling for the
suppression of all evidence stemming from the incident. It also focuses on the
defendant’s conduct up to the point when the government intervened by
introducing an informant or undercover agent.

The United Kingdom House of Lords has laid out a similar
standard.[230] The court
asks whether there has been a violation of the right to a fair trial as a
result of improper undercover tactics by examining two issues: the conduct of
law enforcement, particularly whether it rises to “incitement,”[231]
and the domestic procedural safeguards available to the defendant in arguing
entrapment. While the ECtHR has rejected claims of incitement or entrapment
where there was “concrete evidence” that the defendant had engaged
in significant steps—or at least “initial steps”—toward
committing the specific criminal offense before law enforcement began its
undercover investigation,[232] it has
found violation of the right to fair trial where the authorities
“instigated the offence.”[233]

European human rights law—instructive for interpreting
fair trial rights recognized by the ICCPR as well—suggests that the
current formulation of the US defense of entrapment may not comport with fair
trial standards. Moreover, law enforcement might not engage in some of the more
problematic investigative tactics documented in this report if the entrapment
defense involved a more searching inquiry into police conduct rather than an
investigation into the defendant’s so-called predisposition to engage in
terrorism offenses.

III. Broad Charges: Material Support Cases

Of the 494 individuals prosecuted in the United States for
terrorism or terrorism-related crimes between September 11, 2001, and December
31, 2011, 225 were charged under one of 23 federal statutes directly related to
international terrorism. The remaining 269—more than half of the total—were
charged under some other statute. They are included as
“terrorism-related” in government reports because the Justice
Department’s National Security Division claims that the cases have some
link to international terrorism.[234]

In tandem with the expansion of the FBI’s investigatory
capabilities after the September 11 attacks, Congress amended its laws
criminalizing the provision of material support or resources to terrorists or
designated terrorist organizations to reach a broader range of conduct, leading
to prosecutions that raise concerns about infringements on the rights to freedom
of expression and association. At the same time, prosecutors have increasingly pursued
material support charges against defendants. Indeed, the largest share of
convictions in terrorism-related cases since September 11 is based on material
support charges.

Changes to the Material Support Statute

The original incarnation of what is known as the material
support statute, 18 USC §§ 2339A and B, was enacted in 1994 as a
response to the 1993 World Trade Center bombing. It was intended to prohibit
supply of weapons, physical goods, money and training to terrorists and
terrorist organizations.[235] It
made explicit exceptions for humanitarian assistance[236]
and traditionally protected expression.[237]
Amendments to the statute in 1996, in response to the Oklahoma City bombing,
narrowed the humanitarian assistance exception,[238]
and removed restrictions on speech-based investigation.[239]
The 1996 statute also expanded the scope of the statute to enable prosecution
for material support to “designated foreign terrorist
organizations” (FTOs) under 18 USC § 2339B.

In the wake of the September 11 attacks, Congress passed the
controversial Uniting and Strengthening America by Providing the Appropriate
Tools Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act), which
dramatically expanded the material support law. It broadened the scope of
prohibited “material support” to include “expert advice or
assistance” to a designated FTO, substantially—and vaguely—widening
the range of activities that qualified as support for terrorism.[240]
It also provided the same maximum punishment for attempts and conspiracies to
provide material support as for actually and directly providing material
support.[241] In
2004, partially in response to litigation, Congress clarified some of the
definitional language in the material support statutes.[242]
Then in 2010, in Holder v. Humanitarian Law Project, a divided Supreme
Court upheld the application of the law, including its criminalizing of peace and
human rights-promoting activities provided to a designated terrorist
organization, if coordinated with that group.[243]

The law empowers prosecutors to prosecute conduct that might
seem otherwise innocuous— translating books and publishing them online,
or storing ponchos and socks, as described in two cases below—for the
ostensible purpose of preventing terrorism. While US courts have interpreted
this law as criminalizing conduct only—and not as infringing on freedom
of association—many scholars disagree. David Cole, a law professor who
also served as counsel for plaintiffs in Holder v. Humanitarian Law Project,
has written, “what good is it to have a right to join or associate with a
group if the government can make it a crime to do anything whatsoever on the
group’s behalf?”[244] One
former prosecutor told us that in the interest of security, the material
support statute allows a prosecutor to act well before any harm is imminent:
“From the perspective of a doctor who’s identified a cancer, you
don’t want to take a chance. You take a bigger margin.”[245]

Our research suggests that the breadth of the material
support laws has led federal prosecutors to levy criminal charges for religious
or political conduct itself, or as the primary evidence of criminal activity.

Waves of Material Support Prosecutions

Prior to September 11, 2001, section 2339A was used twice
and section 2339B was used four times.[246] But
the expanded material support law resulted in a substantial increase in
prosecutions. Based on our analysis of 494 cases the Department of Justice
categorizes as terrorism or terrorism-related since September 11, 2001, the
largest share of convictions—168 out of 917, or 18 percent of all
convictions—were for charges under the material support statute (see
chart in Appendix - D).[247]

The post 9/11 prosecutions occurred in two waves. First, in
the years immediately following the expansion, the Justice Department pursued
cases based on a “deep reservoir” of information about political
activists and charitable organizations obtained through intelligence collected
prior to September 11, according to a former assistant United States Attorney.[248]
In some cases the alleged conduct took place prior to 2001—even decades
before. The intelligence was newly available to the Justice Department as a
result of the USA PATRIOT Act, passed in 2002, which knocked down the
“wall” between the FBI and the Justice Department and permitted
much greater sharing between intelligence gathering and prosecution.[249]
The Justice Department moved quickly to prosecute based on that evidence, and publicly
touted the indictments as successes in the war on terrorism. As noted above,
while the Justice Department had only prosecuted a total of six material
support charges in the six years before 9/11, federal prosecutors charged 92
material support cases in the first three years thereafter.[250]

The trend upward continued with a second generation of
cases, beginning around 2005, which illustrate how the material support
statutes offer law enforcement an alternative to resource-heavy sting
operations.[251] In some
of these cases, the government has used evidence of political speech to link
individuals to terrorist organizations and prosecuted seemingly non-criminal
conduct.

The following cases raise concerns about the use of material
support charges:

Case of Sami al-Arian

In 2003, Dr. Sami Al-Arian, a professor of engineering at
the University of Southern Florida, was charged with 53 counts of supporting
Palestinian Islamic Jihad (PIJ), including charges of providing PIJ with
material support. Al-Arian’s case was one of the first material support
prosecutions after September 11, 2001. DOJ reviewed almost 21,000 hours of wiretapped
telephone recording amassed mostly pursuant to warrants under the Foreign
Intelligence Surveillance Act (FISA). The crux of the prosecution’s case
centered on phone conversations Al-Arian had with PIJ prior to its designation
as an FTO in 1995[252];
prosecutors then relied heavily on evidence of Al-Arian’s political views
to convince the jury to convict him without establishing a link to any specific
act of violence.[253]

Ultimately, after a trial lasting more than five months, the
jury was unable to reach a unanimous verdict. Rather than face the prohibitive
costs of another trial, Al-Arian decided to negotiate a plea agreement. In
April 2006, he pleaded guilty to one count of conspiracy to make and receive
contributions to PIJ.[254] The
judge departed from the government’s recommendation in the plea agreement
and sentenced Al-Arian to the maximum possible sentence under the agreement. Under
that sentence, he was set to be released in April 2007.[255]
After a series of contempt charges in Virginia, Al-Arian was released to house
arrest in September 2008. On June 27, 2014, the government moved to dismiss the
contempt charges against Al-Arian, and the motion was immediately granted. The
government indicated its intention to proceed with his deportation pursuant to
a May 2006 removal order.[256]

Holy Land Foundation Prosecution

The FBI began investigating the Holy Land Foundation (HLF)
long before the September 11 attacks. Although the case against HLF centered
around its charitable contributions in the Occupied Palestinian Territories
that allegedly assisted Hamas, much of the conduct at issue took place before
Hamas was designated as a Foreign Terrorist Organization in 1997.[257]

The HLF, founded in 1989, was the largest Muslim charity in
the US in 2001, raising around $13 million a year. It provided funds directly
to zakat committees in Palestine—so-called because zakat,
or charity, is one of the Five Pillars of Islam. The investigation of HLF began
in 1993 after US citizen Muhammad Salah was arrested in Israel for his alleged
role in Hamas.[258] In
1993, Salah told Israeli interrogators that HLF provided support to Hamas, and
the FBI began investigating HLF and other Muslim charities.[259]
After word leaked to the media that HLF was being investigated for ties to
Hamas, its members repeatedly sought to confirm that their charitable
activities complied with US law. HLF hired former congressman John Bryant as
its attorney. Bryant repeatedly spoke to people at the Israeli embassy, the
FBI, the State Department and elsewhere; no one would provide him with
information about whether HLF was violating US law, including whether it should
stop funding any particular group.[260] Bryant
described the prosecution as “a terrible, terrible tragedy.”[261]
He believed the case was politically motived, and described it as
“grossly unjust.”[262]

The defendants were never accused
of directly funding terrorist organizations or terrorist attacks nor were the
individual zakat committees accused of doing so.[263] Rather, the prosecution’s case rested on the
following argument: HLF provided funds to Palestinian charities; the charities
implemented Hamas’ social programs, the social programs helped win the
“hearts and minds” of the Palestinian people, and that support
enabled Hamas’ military wing to carry out terrorist attacks. Former US
Consul-General in Jerusalem Ed Abington called this the “house of
cards” theory of Hamas financing.[264]

The first trial ended in a hung jury; all the defendants
were convicted in a second trial.

The defendants could be prosecuted in this manner because
the material support statutes do not require any showing that a defendant
intended his or her support to be used for an illegal end. Instead, the statute
as interpreted by the Supreme Court bars any support—even that aimed at
encouraging compliance with international law—on the theory that it is
fungible and frees up resources that terrorists can then use for criminal ends.[265]
To be convicted of material support, an individual need not have intended to
commit any underlying crime or even know how the terrorist group might use the
support, though the support must be provided in coordination with the terrorist
group.[266] The Justice
Department has even argued that Congress in effect adopted an “irrebuttable
presumption” that all support to FTOs furthers their terrorist ends.[267]
Congressional findings concluded that, “foreign organizations that engage
in terrorist activity are so tainted by their criminal conduct that any
contribution to such an organization facilitates that conduct.”[268]

Fahad Hashmi Prosecution

Fahad Hashmi also likely could not have been prosecuted
prior to the amendments to the material support law. Hashmi was a recent
graduate of Brooklyn College when he traveled to the UK to pursue a
Master’s degree. Hashmi, a devout Salafi Muslim, was an outspoken
activist against US foreign policy.[269] He had
voiced his criticism in public forums both in the United States and the UK.[270]

In 2006, the US government intercepted Hashmi at a UK
airport as he was about to board a plane to Pakistan. It touted his arrest as
the capture of a “quartermaster”[271] who
had provided material support by aiding in the delivery of military gear to Al‑Qaeda.[272]
Yet, over time, it became clear that the government was not actually accusing
Hashmi of providing military gear himself. Instead, the government alleged that
Hashmi permitted an acquaintance, Junaid Babar, to stay in his apartment for
two weeks, with his luggage.[273] The
“military gear” described in the initial indictment turned out to
be Babar’s luggage, containing raincoats, ponchos, and waterproof socks.[274]
The government later alleged that Hashmi allowed Babar to use his cell
phone, lent him $300 to purchase a plane ticket to Pakistan, and aided him in
delivering this luggage to a third-ranking member of Al-Qaeda by holding it in
his apartment.[275] The
government never presented evidence that Hashmi knew that Babar or his
associates were members of Al-Qaeda; nor did it allege any direct contact
between Hashmi and Al-Qaeda. Indeed, even Babar said that Hashmi was
“very much an outsider.”[276] These
were the only acts of alleged material support prosecutors presented against
Hashmi (though they did point to evidence of Hashmi’s political views and
speech in an attempt to bolster the case against him).[277]

The centerpiece of the case against him was the testimony of
Babar, who himself faced terrorism charges in 2004 and quickly cooperated with
government authorities in exchange for a reduced sentence.[278]
Hashmi was charged with two counts of providing and conspiring to provide
material support and two counts of making and conspiring to make a contribution
of goods or services to Al‑Qaeda.[279] After
spending nearly three years in pretrial solitary confinement (see section IV),
Hashmi pleaded guilty to one count of conspiring to provide material support.[280]
He was sentenced to 15 years in prison.[281]

One former prosecutor described
Hashmi’s case as running up against the outer limits of the material
support laws. “That’s the closest I’ve seen here. He had
developed radical views and clearly sidled up to some bad folks, and ended up
allowing someone to stay with him and store some gear.”[282]
He emphasized that the value of prosecuting someone like Hashmi is deterrence,
both of the perpetrator and others: “Someone who is willing to support
Al-Qaeda would be less likely to go for this after Hashmi.”[283]

Tarek Mehanna Prosecution

In April 2012, Tarek Mehanna was convicted on seven counts,
including three material support charges and three charges of providing false
statements to government officials. He was sentenced to 17 ½ years in
prison.[284]

A pharmacist, Mehanna taught Arabic at a local mosque in
Sudbury, Massachusetts, where he was a favorite among his students. Daoud Ali,
a friend of Mehanna’s from the Worcester Islamic Center, described
Mehanna as a charismatic leader who was an outspoken critic of US foreign
policy.[285]

Prior to arresting Mehanna in 2008, FBI agents approached
him on three separate occasions, including at the pharmacy where he worked,
during work hours. Agents asked him questions about his background, religious
practice, travels and relationships.[286] These
conversations would become the basis for false statement charges brought
alongside material support charges against Mehanna in November 2008.[287]
Mehanna said that on their third visit, outside a hospital where Mehanna had
just finished a shift, federal agents pushed him to become an informant for the
FBI.[288] He
refused.

Soon afterwards, in 2008, Mehanna was arrested as he was
leaving for Saudi Arabia to begin a new job as a clinical pharmacist, and
charged with making false statements.[289]
Mehanna was released on bail. Ten months later, in October 2009, Mehanna was
arrested again in a raid on his family’s Sudbury home, at which point the
remaining charges—including the material support charges—were
brought against him.[290]

The three material support counts rested on two concurrent
theories of liability.[291] First,
the government alleged that Mehanna had traveled with some friends to Yemen in
2004 in a failed attempt to find a jihadist training camp.[292]
Mehanna claimed that he was travelling to Yemen to study classical Arabic and
religion as he continued to explore his faith.[293]
Both agreed that Mehanna returned after a short trip and never attended a
training camp of any sort.[294]

Second, the government pointed to documents and videos that Mehanna
had translated from their original Arabic and posted online to a website called
“At-Tibyan Publications,” which the government alleged amounted to
providing material support to Al-Qaeda in Iraq (AQI) “in the form of
[his] online activities of translating, editing and distributing certain
pro-jihadi materials for terrorists and Al-Qaeda.”[295]
The defense rejected the website’s association with AQI.[296]
Particularly at issue was Mehanna’s translation of 39 Ways to Serve
and Participate in Jihad. At trial and on appeal the government insisted
that the translation of this document alone was sufficient to garner a
conviction.[297]

The trial judge denied a defense motion to dismiss the
material support charges on the ground that the charges were based on activity
protected by the First Amendment guarantee of free speech.[298]
The judge also denied a motion by the defense requesting a special verdict form
that would show whether the jury based any material support verdicts on speech
protected by the First Amendment.[299] After
an eight-week trial, the jury convicted Mehanna on all counts, including
material support. While prosecutors argued that evidence of Mehanna’s
speech and trip to Yemen were separate and sufficient bases for convicting him
of material support, the jury did not indicate whether it considered speech
alone to be sufficient.[300] Mehanna
appealed the verdict on the basis of unduly prejudicial evidence and First
Amendment violations. In November 2013, the First Circuit upheld the verdict, finding
that the evidence relating to the Yemen trip independently supported the
conviction.[301] Mehanna’s
March 2014 petition for writ of certiorari before the Supreme Court is still
pending.[302]

Raleigh 7 Case – Ziyad Yaghi and Omar Mohammad Hassan

Ziyad Yaghi and Omar Mohammed
Hassan were charged, along with five other defendants, with offenses related to
an alleged terrorism conspiracy centered in Raleigh, North Carolina, aimed at
violent jihad and support for and participation in terrorist activities outside
the US.[303] Yet while
the indictment charged conspiracy to provide material support to terrorists, it
never specified to whom Yaghi and Hassan provided material support. Yaghi was
also charged with conspiracy to murder, kidnap or maim, but the prosecution
never specified where, when or how.[304]

The
FBI began investigating Yaghi in 2006 after allegedly receiving tips from the
Muslim community about him.[305] In late 2006, Yaghi told Daniel Boyd—who had
established himself as a leader among Muslim youth in Raleigh—that he
would be traveling to Jordan to visit his grandmother and other family, further
his Islamic education, and hopefully, find a wife.[306] In response, Boyd recommended a mosque where Yaghi
could study and gave him the name of a Muslim woman in Jordan looking to get
married.[307] Prosecutors said that terms like “getting
married,” “going to the beach,” and “getting
engaged” were actually code words for advancing the conspiracy; the
government then used expert witness Evan Kohlmann (see section IV) to lend
credence to that theory.[308]

Prosecutors alleged that Hassan and Yaghi, in collaboration
with their co-defendants and guided by Daniel Boyd, traveled to the Middle East
in an effort to train and join jihadi forces. Yaghi
traveled to Amman, Jordan in October 2006, staying for about three months.
There were three short phone calls, and three emails between Yaghi and Boyd
during that time, and the government said the emails showed that Yaghi had
criminal intent.[309] Yaghi had asked about the location of the mosque Boyd
had recommended and questions about the ideology of violent jihad.[310] To bolster this point, the government used posts on
Yaghi’s Facebook profile, which included political opinions,
observations, and self-styled “gangsta rap” lyrics.[311] The government used the same type of evidence against
Hassan with respect to his 2007 trip to Jordan.[312] At trial, Boyd testified that he had never made any
agreement to provide material support or to murder anyone in a foreign country.[313]

In February 2007, Yaghi learned that Boyd and his family
were planning a trip to Israel/Palestine and asked if he and Hassan could join.[314]
Boyd agreed to let Yaghi come but told him that the trip was a “family
thing” and that Yaghi would be on his own.[315]
The Boyds, Hassan and Yaghi were denied entry to Israel. Although they all
eventually went to Jordan instead, Boyd had no contact with Hassan and Yaghi
while they were overseas.[316] Hassan
and Yaghi vacationed at a beach in Egypt before returning to the United States
in July 2007.

FBI Agent Robert Powell acknowledged that the government
found no evidence that Yaghi or Hassan engaged in any terrorism-related
activities on the 2007 trip.[317]

Hassan and Yaghi bought roundtrip tickets, paid for their
own tickets, used their real names and proper identification documents, and
openly told law enforcement authorities at several airports they were there to
“see the sights” and see Daniel Boyd.[318]
Nonetheless the government told the jury in its opening statement that
“the evidence, in cumulative form, will show convincingly that [the 2007
trip] was for the purpose of finding a way to the battlefield, trying to get
hooked up with terrorists overseas who can take them to the battlefield to kill
Americans.”[319]

After Yaghi returned from Jordan in 2007, the FBI visited
his home more than 10 times, though Yaghi’s mother, Leila Yaghi, told us
that she refused them entry.[320] Yaghi
and Hassan communicated with Boyd two times after returning from Jordan,
meeting him at his store in Raleigh in the summer of 2008. They had no
communication thereafter. Both men were arrested in July 2009. Boyd and his two
sons pleaded guilty to the charges against them and testified against Yaghi and
Hassan at trial.[321] Boyd was sentenced to 18 years in prison;
his sons were sentenced to seven years each. Hassan and Yaghi were convicted
and sentenced to 15 and 45 years, respectively.[322]

Human Rights Concerns

Several of these cases raise
serious concerns about violations of individuals’ rights to free speech
and association under the US Constitution and international law. According the
UN Human Rights Committee, “The criminalisation of expression relating to
terrorism should be restricted to actual participation in terrorist acts or
instances of intentional incitement to terrorism.”[323]Similarly,
the government can only punish association with a group that intends to commit
crimes if the association itself is intended to further the illegal aims.[324]

In 2007, then-UN special rapporteur on human rights while countering
terrorism, Martin Scheinin, cautioned against material support laws that are
“expressed in terms that are not exclusive [and which] thereby render[]
the expression ‘material support’ too vague.”[325]
This “lack of precision” leaves the boundaries of liability unclear
and makes it “particularly problematic for communities, including Muslim
ones, which are unable to determine whether the provision of funds by them to
what they may believe are charities or humanitarian organizations abroad will
be treated as material support to a terrorist entity.”[326]

Despite the US Supreme
Court’s acceptance of an extremely broad interpretation of the material
support laws, the US has international legal obligations regarding the cases it
chooses to prosecute. Some of the cases discussed above raise serious questions
about whether the US is complying with those obligations.

IV. Unfair Trials

Terrorism suspects, like all criminal defendants, have the
right to a fair trial, guaranteed under both the US Constitution[327]
and international human rights law.[328] A fair
trial requires that defendants have access to competent counsel and adequate
time and resources to prepare their defense. In a fair trial, if prosecutors
seek to introduce evidence that would unfairly prejudice the jury, the judge
will exclude the evidence. Defendants also have the right to challenge the
basis for any warrant and to test whether law enforcement complied with the law
during the investigation.

Terrorism cases in the US since September 11, 2001 have raised
serious fair trial concerns. This is largely due to investigative and detention
tactics that occur prior to trial including prolonged solitary confinement
during pretrial detention, as well as procedural impediments imposed by the US
Congress or courts; use of prejudicial evidence such as evidence obtained
through coercion; classified evidence obtained by warrantless wiretaps that
cannot be fairly contested; and inflammatory evidence, including evidence about
terrorism in non-terrorism cases that unfairly plays on jurors’ fears.

Prejudicial Evidence

Terrorism is by definition terrifying. While most crimes
have specific victims, a major purpose of terrorism is to instill in the
general population a fear that they themselves at any time could be victims of
a terrorist attack. This means that jurors in terrorism trials may already be
frightened or anxious about the crimes in question and the defendant’s
role; these fears may be heightened by the introduction of certain forms of
evidence at trial.

In a number of terrorism-related cases we examined, federal
prosecutors have introduced, and federal judges have accepted, various types of
evidence that should have been considered overly prejudicial—that is,
evidence that might unfairly influence the jury. Such evidence may taint the
jurors’ ability to judge objectively and deprive the defendant of a fair
trial, which includes the absence of any influence on the judge or jury,
regardless of motivation.[329]

Evidence that has been admitted in terrorism cases and that
raises concerns includes statements obtained from the defendant by coercion,
references to terrorism unrelated to the charges, and evidence that might be
more prejudicial than probative. With the specter of terrorism looming largely
over the case, some judges allowed witnesses to testify anonymously (including
by shielding their true identity from the defense), making it difficult for the
defendant to challenge the veracity of witness testimony, and permitted other
witnesses to testify when their personal circumstances suggested they were
biased or unreliable.

Evidence Obtained
by Coercion

Under international law, evidence obtained from defendants
by coercion cannot be admitted against them.[330] Similarly, US law, following the 1966 Supreme
Court ruling in Miranda v. Arizona,[331]
requires law enforcement to give the defendant a series of advisories about his
rights before the defendant’s confession can be admitted as evidence
against him.

The Miranda requirements do not apply to evidence
taken by foreign agents. Accordingly, US courts have adopted a separate
“voluntariness” standard, which provides that for a confession
obtained by foreign agents to be admitted in a US court, it must be the product
of the defendant’s “essentially free and unconstrained choice.”[332]
If the defendant’s “will has been overborne and his capacity for
self-determination critically impaired, the use of his confession offends due
process.”[333]

However, in terrorism cases in the US, prosecutors have
repeatedly introduced evidence that appears to have been the product of
coercion, and courts have accepted it. For example:

Case of Muhammad Salah

In 1993, Israeli authorities arrested Salah at a checkpoint
between Israel and Gaza.[334] The
Israeli Security Agency interrogated him for about 50 days.[335]
In federal court proceedings in 2006, Salah alleged that, while in
interrogation, an Israeli interrogator stripped Salah naked and threatened that
his family would be harmed or killed if he did not cooperate.[336]
Salah said the interrogater deprived him of sleep for 48 hours, and
forced him to sit shackled on a slanted child-size chair while he interrogated
Salah.[337] He
then moved Salah to a 2 X 3 foot “refrigerator cell” with his hands
handcuffed behind his back to a metal bar, all while wearing a hood reeking of
vomit and urine.[338] Salah
said he was subjected to loud music and the sound of people screaming in pain.
Under these conditions, Salah signed two documents written in Hebrew—a
language he did not speak or read. He wrote a third statement after being
transferred to a cell where he was threatened by other inmates.[339]

When Salah challenged the admission of these statements
against him at trial in the US, the judge found the testimony of his Israeli
interrogators—who testified that they did not mistreat him, and in fact
treated him “specially” because he was an American[340]—to
be credible, despite Salah’s own testimony and that of two other
Palestinians who had been interrogated by the same Israeli interrogator and
described similar forms of abuse.[341] Much
of the evidence from Israeli intelligence, including information about the
security agencies’ typical interrogation procedures, was classified and
withheld from the defense pursuant to the Classified Information Procedures Act
(CIPA) (see discussion below). Salah was ultimately acquitted of terrorism
charges in the federal case, though convicted of obstruction of justice and
sentenced to 21 months in prison.[342]

Case of Ahmed Abu Ali

In September 2002, Abu Ali, a US citizen, traveled to Saudi
Arabia to study at the Islamic University in Medina. In May 2003, three
compounds primarily occupied by Westerners in the Saudi capital of Riyadh, were
bombed. The Saudi authorities engaged in mass arrests in Riyadh, Mecca, Medina,
and elsewhere. In June 2003 the Saudi security service, the Mabahith al-Amma (General
Investigations), detained Abu Ali, holding him for 20 months without charge.
Abu Ali later said Saudi agents subjected him to physical abuse, including
slapping, whipping, and scarring; threatened him with amputation; and denied
him food and access to a lawyer.[343] Abu
Ali made statements that he later claimed were involuntary and the product of
torture.[344] He
alleged that after about one month in detention, a captain of the Mabahith had
him copy in his own handwriting a “confession” that his Saudi
interrogators had summarized.[345] While
Abu Ali was in Saudi custody, FBI officials traveled to Saudi Arabia and
watched from behind a two-way mirror while the Saudis interrogated him,
including questions based on inquiries the FBI had provided.[346]
The FBI also interrogated Abu Ali directly, with and without the presence of
Saudi officials, though Abu Ali did not allege the FBI mistreated him.[347]

Nearly a year later, in May 2004, the FBI told a family
friend of Abu Ali that the FBI had no further interest in his detention. Also
that month, the US Embassy informed the Saudi government that there were no
pending US legal proceedings against Abu Ali and that his detention should not
continue at the behest of the US. Nevertheless, the Saudi authorities continued
to hold Abu Ali. His parents filed a petition for his release in federal court
in Washington, DC, arguing that he was in constructive US custody. In December
2004, District Judge John Bates ordered the US government to provide
information regarding Abu Ali’s arrest and detention.[348]
Instead, a federal grand jury issued an indictment against him in the Eastern
District of Virginia. In February 2005, Abu Ali was handed over to US
authorities and flown to Virginia. The indictment charged him with providing
material support to and conspiring to provide material support to terrorists
and designated terrorist groups.[349]

During the trial, the defense moved to suppress videotaped
“confessions” of Abu Ali made while in Saudi custody on the grounds
that they were involuntary and the product of torture. The government conducted
an “investigation within an investigation,” to determine if his
claims were credible.[350] Former
prosecutor David Laufman told us that the prosecutors were aware of reports
that Saudi Arabia had a record of torturing prisoners, including an annual US
State Department country report on human rights.[351]
Saudi officials testified via live video-feed that Abu Ali had
not been tortured in Saudi custody, and other witnesses testified that Abu Ali’s
behavior in the period after his arrest was not consistent with someone who had
recently been tortured.[352]
District Judge Gerald Bruce Lee found the testimony of Saudi intelligence
officials that Abu Ali was not tortured to be credible,
expressed doubts about Abu Ali’s own credibility during his
cross-examination, denied the defendant’s motion to suppress his
confessions, and permitted the prosecution to introduce at trial the
inculpatory statements obtained from Abu Ali while in Saudi
custody.[353] The
case was highly politically charged. In opposing Abu Ali’s motion to
suppress his statements, the prosecution brief began: “The defendant in
this case represents one of the most dangerous terrorist threats that America
faces in the perilous world after September 11, 2001: an Al-Qaeda operative
born and raised in the United States, trained and committed to carry out deadly
attacks on American soil.”[354] The
government deemed Abu Ali’s allegations of torture “a
fabrication” designed to “thwart justice” and relied heavily
on the testimony of Saudi officials that they had treated Abu Ali humanely.[355]
The judge did not allow the defense to introduce as evidence at trial the many
reports by the US State Department and organizations like Amnesty International
and Human Rights Watch that have documented torture in Saudi
Arabia—including evidence of torture of two UK nationals in prison at the
same time as Abu Ali.[356] The
judge concluded that evidence of other individuals’ torture was not
relevant to whether Abu Ali had been tortured.[357]

Abu Ali was convicted of conspiracy and providing material
support to terrorists, as well as conspiracy to assassinate former President
George W. Bush. He was sentenced to 30 years in prison, which was later revised
to a life sentence.[358]

Inflammatory or Improper Evidence

Particularly in cases that are the result of an FBI
“sting” operation, prosecutors wish to show the defendants’
state of mind and pre-existing interest in terrorism. To do so, prosecutors
frequently display videos or show websites found on defendants’
computers. They seek to introduce evidence about the defendants’ views of
Islam and certain religious words or phrases. In a number of cases, prosecutors
have introduced as evidence statements that were mistranslated, and as a result
were much more inflammatory than they would have been if correctly translated.
And in some cases where the charges have nothing to do with terrorism, prosecutors
seek—and judges have permitted—the introduction of inflammatory
evidence of terrorist violence unrelated to the case that is highly
prejudicial.

Inaccurate Translations

In many terrorism cases we reviewed, the prosecution’s
expert asserted a singular, extreme and contested meaning of an Arabic word,
which failed to accurately represent the subtleties of language. These
translations often resulted in highly inflammatory—and
inaccurate—evidence being presented against the defendant. For example:

Case of Adnan Mirza:

In this case,
the judge allowed an FBI undercover employee involved in the sting operation
who had no demonstrated expertise in Islam or Arabic to testify about the
Arabic word “Shaheed,” which the undercover claimed Mirza
had said he hoped he would get. According to the undercover employee, “‘Shaheed’
was, basically, the blessings that you would get if you lived a proper Muslim
life and went out as a martyr, died as a martyr.”[359]
The undercover employee did not explain—and probably did not have the
expertise to even know—that the term has a broad meaning, which includes
not only dying while fighting to defend Islam, but also dying because of
religious persecution, or for the well-being of others. It was also problematic
that, over the defense’s objection, the judge allowed the undercover
employee, with no demonstrated expertise in Islam, to define for the jury an
Islamic concept.[360] As
with the repeated references to “jihad” in Mirza’s trial and
many other terrorism trials, the prosecution presented a definition that was
the most extreme, ignoring other interpretations of key words like Shaheed.[361]

Case of Barry Bujol:

Evidence
introduced against Barry Bujol also raised concerns about language. When the
informant talked to Bujol about traveling to Yemen and fighting with the
“holy warriors,” Bujol often responded, “Inshallah”—an
Arabic term that literally means “God willing.” The prosecution
presented this as demonstrating Bujol’s clear determination to fight with
Al-Qaeda in the Arabian Peninsula (AQAP). But, Bujol was a recent convert to
Islam, and the word inshallah may be used in many different ways—such
as simply to signal “okay”—particularly by those who have
recently acquired an Islamic vocabulary.[362] The
government’s definition of other Arabic terms, including hijrah,
or emigration, was likewise controversial.[363] In
Bujol’s case, because he chose to represent himself at trial, the
government’s use of inaccurate or disputed phrases went largely
uncontested until the sentencing phase.

In some cases, mistranslation of recorded conversations
between the defendants and the informants, or misidentification by the
government of the speaker, may have distorted their meaning in ways that had a
negative impact on the defense. For example:

Case of Matin Siraj (see section II):

one part of the transcription of a conversation between the informant and
Siraj, which was conducted in Urdu (a Pakistani language), refers to “SUB
#1” who described concern for people’s lives. The speaker was
Siraj, yet was not labeled as such.[364] Siraj
described in a letter from prison that later in the transcript “I clearly
state ‘We have to drop it!’ which the transcriber identifies with a
(?) mark, as if I were asking a question, as I was clearly declaring dropping
the 34th Street station scheme.”[365] Siraj
felt that the transcription failed to present that he was attempting to back
out of the plot.

Case of Yassin Aref (see section II):

During the trial, Aref became extremely agitated and the defense proposed that
another translator double-check the accuracy of the translations.[366]
Aref said the government distorted almost all the recordings they had,
particularly when he spoke in Kurdish.[367] Aref
alleges the government also manipulated his statements to make him sound
dangerous, for example by playing over and over recordings of terms like
“jihad” that he or the Islamic Movement of Kurdistan (IMK)
used in the 1990s, to make it look like the IMK was calling for jihad against
the West or that he was praising mujahideen. “They knew very well
that the jury took these words as though they were a call for using violence
against civilians in the west, while they knew it was all about Kurdish peshmerga
and their struggle for freedom. They had nothing to do with any ‘global
jihad’ activity.”[368]

Evidence of Unrelated Terrorism or Violence

The most frequent terrorism-related offenses—charges
of providing material support to terrorism or terrorist organizations, or
conspiracy—are extremely broad. A conspiracy charge in particular opens
the door for the prosecution to introduce a range of disturbing evidence,
including graphic images of terrorist attacks, about which the defendant may
know nothing. Prosecutors in US terrorism cases have sought to establish knowing
participation in a conspiracy by showing videos or websites found on
defendants’ computers. Yet, often the videos have little relevance to the
charges.

In the trial of Tarek Mehanna (see section III), the
government presented a variety of inflammatory pictures to the jury: 28
different images of New York’s World Trade Center in flames, 33 video
clips and 95 thumbnail photos, many of which were only found as cache files on Mehanna’s
computer.[369] The
prosecutors mentioned Osama Bin Laden 18 times before the close of the trial,
even though there was no evidence presented of any relationship between Mehanna
and Bin Laden.[370]

This tactic was particularly troubling in the case against
the Fort Dix Five, where the prosecution showed numerous violent videos found
on the defendants’ computers, alleging that defendants possessed and
viewed the videos, without even attempting to show that the defendants intended
to commit acts similar to those in the videos. A journalist observing the trial
described the videos as follows:

The [sniper] video opens with several scenes of American
troops in Iraq, moments before a sniper’s bullet cuts them down. Next
comes a blaring air-raid siren, followed by still images of US troops lying on
the ground or being dragged from the street, presumably dead or gravely
wounded. Then Arabic singing fills the soundtrack as a montage of world
leaders, including President Bush, former Secretary of Defense Donald Rumsfeld,
and former British Prime Minister Tony Blair, appears on the screen. Crosshairs
move across their faces, until gunshots are heard and a red dot appears on the
forehead of each.[371]

The videos also depicted
beheadings. In response to a defense motion, the judge ordered that the actual
decapitations not be shown to jurors, for fear of unduly prejudicing them
against the defendants.

Shain Duka, one of the
defendants, described one juror reacting to a lengthy video of US soldiers being
killed in battle by insurgent snipers. The juror “got up from her seat
before exiting for the break, gave us all a stare of death, turned around and
slammed the binder of transcripts… Her mind has shut down and she
can’t judge correctly.”[372]
Indeed, Juror No. 3 told the Philadelphia Inquirer that while she was
watching the video of the sniper, “I thought I was seeing my son getting
hit,” though she said jurors did not let their emotions affect their
judgment.[373]

Selective Use of Informant Evidence

While most of the disturbing evidence introduced in the Fort
Dix case came in through expert testimony, discussed below, another troubling
aspect of the evidence adduced in the case involved the selective use of
informant recordings. Informant Besnik Bakalli testified that after Dritan Duka
watched a video of Anwar Al-Awlaki, the US-born Yemeni cleric who was killed by
a US drone strike in September 2011, Dritan said he was “going to start
something,” and that “we have enough people … you can do a
lot [of damage] with seven people.”[374] But in
later recordings, Dritan essentially retracted his statement, telling Bakalli
that people are not allowed to train with terrorists, and that to him jihad
meant not fighting, but spreading Islam. Dritan discussed the same Awlaki video
mentioned above, and said “you listen to one [imam] and then you listen
to another. You don’t know what to believe.”[375]
The court refused to allow the additional recordings into evidence, reasoning
that Dritan himself could testify if he wanted to rebut the initial recording.
The ruling meant that if Dritan wanted to rebut the recording he would have to
give up his right not to testify and expose himself to wide-ranging questioning
from the government.[376]

Evidence Suggestive of Terrorism in Non-Terrorism Cases

Some of the most troubling evidence we examined was adduced
in non-terrorism cases, where the government nevertheless sought to draw
connections between the defendant and known terrorists or terrorist activities.
The issue is closely tied to the government’s use of the Foreign
Intelligence Surveillance Act (FISA) (see discussion below). For example:

Case of Pete Seda

In February 2005 the government charged Pete Seda (born
Pirouz Sedaghaty) with conspiracy to defraud
the US government and filing a false tax return, in connection with an
investigation into Al-Haramain Islamic Foundation, a charity based in Saudi
Arabia; in 2000, Seda had founded the Ashland, Oregon branch of Al-Haramain.
Seda was living overseas at the time he was indicted 2005; he voluntarily
returned to the US to face charges in August 2005. At
the outset of the trial, the federal prosecutor stressed that the government
was not seeking to hold Seda to account for any terrorism offenses.[377]

Yet the specter of terrorism
permeated Seda’s trial. The government used as a demonstrative exhibit
(it was never admitted into evidence) a 3 x 4 foot chart with photographs of
Seda, his co-defendant Soliman al-Buthe, an Al-Haramain accountant from Saudi
Arabia who was in Saudi Arabia at the time, and the Chechen mujahideen
commander Ibn al Khattab, whom Seda had never met.[378] The government also elicited testimony about terrorism
through the use of expert witness Evan Kohlmann (see below). The
government’s theory was that Seda falsified his tax returns in order to
funnel money to the Chechen mujahideen.

One of Al-Haramain’s
activities in the US was the distribution of Qurans and other religious
material to US prisons. One version of the Quran that Al-Haramain distributed
was called the Noble Quran and included a controversial appendix describing
forms of jihad. The prosecutors argued that Seda shared the mindset of the
authors of the index, which, the prosecutors claimed, called on prisoners to
“Perform jihad against polytheists by wealth, body, and
tongue.”[379] The judge did not permit Seda to introduce a volume of
letters, articles, emails, and a book he had written about Islam that the
defense argued would have countered the government’s portrayal of him
“as a fundamentalist supporter of terrorism.”[380]

The Department of Justice touted
Seda’s conviction as a success in the fight against terrorism.[381] In contrast, prominent local attorney and Muslim convert
Tom Nelson described Seda’s trial as “Islamophobia on
parade.”[382]

In August 2013, the Ninth Circuit
Court of Appeals affirmed in part and reversed in part Seda’s conviction,
ordering a new trial.[383] The opinion noted that Seda’s “tax fraud trial
was transformed into a trial on terrorism.”[384] The court went on to note: “The appeal illustrates
the fine line between the government’s use of relevant evidence to
document motive for a cover up and its use of inflammatory, unrelated evidence
about Osama Bin-Laden and terrorist activity that prejudices the jury.”[385]

Case of Mehrdad Yasrebi

Dr. Mehrdad Yasrebi, founder of Child Foundation, was
charged with conspiring to defraud the Office of Foreign Assets Control (OFAC),
the entity that enforces US economic and trade sanctions against other
countries, including Iran. Yasrebi was initially charged with violations of the
sanctions regime, as well as tax fraud and money laundering, though the
indictment and superseding indictment remain sealed.[386]
Though he was not charged with terrorism-related offenses, prosecutors
attempted to draw connections between his charitable work and terrorism throughout
the proceedings against him.

Child Foundation, based in Portland, Oregon, provided
education and assistance to impoverished children in Iran, and Yasrebi
accordingly had significant communication with individuals in Iran. In
September 2000, Yasrebi contacted OFAC to inform it of his work and request a
determination that his work did not violate the sanctions regime. Yasrebi was
aware of a similar charitable organization that received information from OFAC
that its charitable donations to Iran did not violate OFAC regulations and was
represented by the same attorney that had represented that organization.[387]

OFAC responded to Yasrebi’s correspondence by noting
that filing a license application or requesting information—as Child
Foundation had—did not excuse noncompliance, but did not tell Yasrebi or
Child Foundation that a license was required. OFAC then transferred Child
Foundation’s request to its Enforcement Division. While noting that the
ordinary procedure would be to issue a demand letter, internal OFAC documents
indicate that “[b]ecause of the criminal investigative interest by the US
Attorney’s Office and US Customs Service in this matter, OFAC Enforcement
will not proceed with the issuance of a demand letter.”[388]
OFAC also found relevant that Child Foundation had submitted another request in
October 2001. The government initiated surveillance of Yasrebi shortly after September
11—it is not clear whether his second letter triggered the surveillance.[389]

For eight years, US authorities amassed a mountain of
evidence, none of which appears to have shown any support for terrorism. Yet
the case was investigated by the Joint Terrorism Task Force and FISA was
utilized (see below). Yasrebi ultimately pleaded guilty to conspiring to
defraud OFAC and the Internal Revenue Service. Prosecutors repeatedly made
reference to terrorism even though Yasrebi was never charged with any
terrorism-related offense. The sentencing judge, District Judge Garr King,
noted that even though the money Child Foundation sent to Iran was for
humanitarian purposes, it “did violate the embargo in effect at that
time.”[390] The
prosecution sought a sentence of 30 months’ imprisonment in part because
of the “national security” and “terrorism” implications
of the case,[391] which
the judge apparently rejected in imposing one year of home detention in which
Yasrebi could go out in consultation with his probation officer.[392]

Yasrebi’s defense attorney, David Angeli, told us that
he felt that once the government suspected terrorism it was unable to let go of
the idea. Recognizing that the volume of money transferred to Iran ($10 million
over several years) might reasonably arouse suspicion, he nevertheless felt
that the government was unable to see the facts clearly:

[W]hen you commit to something like that, maybe it’s
human nature that, even years later when [all the evidence shows otherwise,]
that you just can’t back off, that you think, “We’ve got to
get a return on our investment.” I really think that’s a lot of
what’s going on here…. And the result is that these people’s
lives are just being destroyed.[393]

Holy Land Foundation Case

In this case (see section III) the defendants were never
accused of directly funding terrorist organizations or terrorist attacks, nor
were the Palestinian charities they funded accused of doing so. Nonetheless,
they were prosecuted on the notion that the social programs they financed help
win the “hearts and minds” of Palestinian people for Hamas.

Former US Consul-General in
Jerusalem Ed Abington told us that the United States Agency for International
Development (USAID) had funded the same zakat committees that the Holy
Land Foundation (HLF) provided funding to, and that clearly the US government
did not consider them fronts for Hamas.[394] Abington testified at both HLF trials. He testified about
personally visiting zakat committees, and noted that while some
committees had members who were also members of Hamas, he did not believe the
committees were controlled by Hamas.[395] Abington also testified that the Central Intelligence
Agency (CIA) had assisted in the development of Palestinian security forces,
and that Israel’s intelligence—on which much of the case was
based—was not reliable.[396]

After the trial, the CIA sent Abington a letter saying he
had spoken contrary to his obligation to keep information confidential, and
that he could be prosecuted.[397] During
the second trial, the CIA sent a lawyer to observe Abington’s testimony,
and the judge provided less latitude, limiting the scope of his testimony about
CIA involvement in Israel.[398]

Because the defendants were accused of ultimately supporting
a structure that permitted Hamas’ military wing to engage in terrorist
acts, the court admitted evidence pertaining to
bombings committed by Hamas. It also admitted images of Palestinian school
skits of suicide attacks with no relationship to the defendants, and images
that were pulled from the defendants’ computers even though they were
images that automatically download onto a user’s computer when viewing
particular websites.[399]

Many US terrorism cases involve allegations that the
defendant was either in contact with known terrorist groups (or believed he
was when in fact he was communicating with an undercover agent or informant),
or aspired to be associated with those groups. In order to prove a charge of
providing material support for terrorism (discussed in section III), the
prosecutors can introduce evidence of terrorist activities about which the
defendant himself may have no knowledge.

They
generally do so through the use of expert witnesses. Unlike eyewitnesses,
expert witnesses have wide latitude to testify on matters about which they do
not have firsthand knowledge. In particular with informant cases—in
which the defendant may have believed he was in contact with a member of a
terrorist group but actually was not—expert witnesses have provided
evidence about terrorist groups about which the defendants themselves may
have been entirely unaware.

One such
expert witness who testified in nearly all the cases discussed in this report
that went to trial is Evan Kohlmann. Kohlmann has testified as an expert in
at least 24 federal cases and 2 military commissions.[400] While he wrote a thesis on Arab
Afghans, Kohlmann does not speak fluent Arabic or any other language relevant
to his research, meaning that his online research focuses on English-language
material.[401] Nor does Kohlmann have an
extensive history of travel to or field work in regions where Islamist armed
groups operate.[402]

Yet
Kohlmann’s testimony has been relatively wide-ranging, arguably far
outside his areas of expertise. For example, while Kohlmann more typically
testifies about Al-Qaeda, the district judge in Yassin Aref’s trial
allowed him to testify about Jamaat-e-Islami (JEI) of Bangladesh, the Islamic
Movement of Kurdistan, and other Kurdish groups. Kohlmann had 36 to 48 hours
in which to prepare his written report, and during a deposition indicated
that he did not know anything about the political situation in Bangladesh or
the JEI of Bangladesh, including who its leaders were.[403] The Second Circuit Court of
Appeals upheld the prosecution’s use of Kohlmann’s expert
testimony, citing a “liberal standard for the admissibility of expert
testimony.”[404] The appeals court reviewed the
trial judge’s decision on an abuse of discretion standard, so
Kohlmann’s testimony on JEI Bangladesh was admissible even despite his
professed lack of knowledge about it.

Often,
Kohlmann’s testimony reaches dramatic conclusions, suggesting that
activities or materials linked to the defendants are characteristic of
terrorism. When Kohlmann testified in the Seda case, which was later
overturned and remanded for a new trial, he claimed that the former director
of a Saudi charity had been an “old friend” of Osama Bin
Laden’s in the 1980s.[405] The Ninth Circuit Court of Appeals
noted that Kohlmann had no direct knowledge of the facts of the case.[406] In testifying at the Raleigh 7
case (discussed in section III), Kohlmann testified about the nature of
homegrown terrorism without citation to any academic work or any known
fieldwork analyzing the criteria for the development of homegrown terrorism.
Nevertheless, he concluded that the defendants likely “fit the classic
profile of contemporary violent extremists and that there is a high
probability of the existence of a home-grown terrorist network.”[407]

Kohlmann
believes that people overestimate the impact of his testimony and that his
testimony is often useful to the defense as well as the prosecution.[408] Defense attorneys see it
differently. Daphne Silverman, Barry Bujol’s attorney at sentencing,
told Human Rights Watch:

Kohlmann is an expert in how to use the Internet, like my 12-year-old.
He has found all the bad [stuff] about Islam, and testifies as if what he is
reading on the Internet is fact. He was paid around $30,000 to look at
websites, documents, and testify.[409]

She
contrasted that with a judge’s denial of Bujol’s request to call
a religious expert at trial, concluding, “The [imbalance] in expert
testimony is an injustice that is really coloring these trials—you end
up with just a government show.”[410]

Anonymous Witnesses

Trials in US courts are considered public, and virtually all
witnesses testify using their true names. US and international law protect the
right of defendants to confront witnesses against them.[411]

However, in some terrorism cases, US courts have allowed the
government to hide the identity of witnesses—including foreign agents and
US officials—either for their own protection, or because the witness
works in a sensitive position. At times the witness’ identity is hidden
even from defense counsel, making it nearly impossible for the defense to
investigate the person’s background.

The use of anonymous witnesses raises concerns about
adequate protections of the right to a fair trial. International human rights
law requires that everyone charged with a criminal offense be able to examine
the witnesses against them.[412] The
use of anonymous witnesses violates fair trial rights because it deprives the
accused of the necessary information to challenge the witness’
reliability. The Human Rights Committee has said that anonymous testimony
should not form the primary basis for conviction.[413]
While the cases we documented did not rely exclusively or primarily on
anonymous testimony, the use of such testimony for critical components of the
case, including expert testimony, raises fair trial concerns.

Anonymous witnesses were used in the Holy Land Foundation
case[414] and
the case of Muhammad Salah. They were also used in the case of Mohamed Mohamud,
who was convicted in January 2013 of attempting to use a weapon of mass
destruction following a sting operation.[415]
Mohamud twice thought he was detonating a bomb via his cell phone at a
Christmas-tree lighting ceremony in Portland, Oregon. At trial, the FBI agents
who had been involved in the sting operation testified using pseudonyms and in
light disguise. In January 2013, Mohamud was convicted of attempting to use a
weapon of mass destruction; in June 2014, the district court denied his motion
for a new trial. At time of writing, Mohamud has not been sentenced.[416]

Evidence from Warrantless
Wiretaps under the Foreign Intelligence Surveillance Act

In dozens of terrorism cases, prosecutors have used as
evidence information obtained by wiretaps or physical searches not subject to
the standard probable cause requirements in criminal cases. In these cases, the
government obtained information pursuant to either the Foreign Intelligence
Surveillance Act (FISA), or the FISA Amendments Act (FAA)—two statutes that
permit surveillance without a traditional warrant. Applications under FISA are
reviewed by the specially created Foreign Intelligence Surveillance Court
(FISC), which sits in secret and does not have any structures in place that
would offer meaningful opposition to government requests. The FISC issues
warrants based only upon a showing of probable cause that the target of
surveillance is a foreign power or an agent of a foreign power, not that there
is probable cause that the target is suspected of criminal activity.

The FISC has rarely rejected a government request for a
surveillance warrant. Since its inception, the FISC has received more than
30,000 applications for authority to conduct electronic surveillance or
physical searches. Of those, it has denied nine, and partially denied another
three.[417] Under
the FAA, the government does not need any kind of warrant at all. Rather, it
obtains year-long authorizations from the FISC to collect “foreign
intelligence information,” defined broadly (see below) so long as one end
of the communication is “reasonably believed” to be outside the US
and the government follows certain procedures it submits to the FISC for
approval, intended to minimize the amount of information collected on “US
persons.”[418] In
practice however, an enormous number of US-person communications are still
swept up in the surveillance.[419]

Background: Broadening of the Foreign Intelligence Surveillance Act since
9/11

The US Congress enacted FISA in 1978 in the wake of the
Watergate scandal and other concerns about warrantless wiretapping.[420]
FISA was intended to rein in government surveillance excesses by requiring
judicial authorization to conduct surveillance to collect “foreign
intelligence information” inside the US.[421]

Ordinarily, electronic searches and physical
evidence-collection are governed by the Fourth Amendment to the US
Constitution, which protects against “unreasonable searches and
seizures.”[422] This
generally requires that evidence used against a defendant be obtained through a
warrant based on probable cause of criminal activity.[423]
FISA does away with the traditional warrant requirement in certain circumstances,
on the theory that the government has the inherent authority to conduct foreign
intelligence surveillance, even inside the US, without a traditional warrant.[424]
Instead, the government can obtain an order from the FISC in an ex parte (only
one party) proceeding upon a showing of probable cause that the intended target
of the surveillance is a foreign power or an agent of a foreign power.[425]
FISA originally required that the collection of foreign intelligence
information be a primary purpose of the surveillance, leading to what was
colloquially referred to as the FISA “wall,” in which law
enforcement could not be involved directly in coordinating surveillance with
the intelligence community under FISA.[426]

However, after 9/11, Congress amended FISA in 2001,
substantially broadening its scope. The amendments took down the wall,
permitting law enforcement to become more directly involved in coordinating
surveillance under FISA.[427] And Congress
changed the requirement that foreign intelligence collection be “a
primary purpose” to merely “a significant purpose.”[428]

As a result of the amendments, the government has contended
that not only can the information from a FISA order be used in criminal prosecution,
but intended criminal prosecution can be a reason for obtaining the FISA order
in the first place, so long as it is not the sole purpose.[429]
Surveillance that might previously have required a traditional warrant can now
be authorized by the FISC ex parte and in secret.[430]

Additionally, beginning at least as of 2002 if not before, then-US
President George W. Bush authorized warrantless surveillance—surveillance
without either a traditional warrant or an order from the FISC—inside the
US.[431] It is
not clear to what extent information obtained pursuant to that program was used
in criminal prosecutions.

In 2008, Congress broadened FISA even further, by passing
the FISA Amendments Act (FAA), which permits the attorney general and director
of national intelligence to issue one-year blanket authorizations for
surveillance of non-US persons “reasonably believed” to be outside
the United States in order to acquire “foreign intelligence
information” without a warrant.[432]
“Foreign intelligence information” is defined very broadly, to
include not just information important to national security, such as
information about weapons of mass destruction or terrorism, but also
information that merely “relates to” the “security” or
“foreign affairs” of the US.[433]

Acquisitions under the FAA are subject to
“minimization” and “targeting” procedures approved
annually. These procedures are purportedly intended to minimize the acquisition
of US-person communications as well as apply limits to the use and
dissemination of the information obtained.[434] These
procedures are classified, though the US has declassified some minimization
procedures in response to certain Freedom of Information Act (FOIA) requests.
It is not clear if these procedures will be made available to the public going
forward. As for targeting procedures, the only ones made available to the
public thus far are a 2009 version that was leaked to the media[435]
by former National Security Agency contractor Edward Snowden.[436]
Both the one-year authorizations as well as the targeting and minimization
procedures must be approved by the FISC, but once approved, there is no
requirement that the court monitor how the rules are applied or conduct
oversight.[437]

When the government plans to use the FISA-obtained evidence
in a criminal prosecution against a defendant who was under surveillance,[438]the attorney
general must give advance notice.[439]
However, if the evidence was obtained through FISA but not directed at the
defendant—for example, if a co-defendant or witness was subject to surveillance
or physical searches pursuant to a FISA order—FISA does not require the
government to notify the defendant in advance of its plans to use the evidence.[440]
Because FISA orders are issued in secret, the subjects of the orders generally
only learn of them if they are prosecuted; if criminal charges are never
brought, the existence of the FISA order remains secret.[441]

In January 2014, President Obama announced a presidential policy
directive establishing new measures intended to restrict the use,[442]
retention and dissemination of information obtained by intelligence agencies—though
it left open the possibility of continued bulk collection.[443]
It is not clear from the directive how the new restrictions will relate to
information collected under the FAA because the directive specifically exempts
data “temporarily acquired to facilitate targeted collection” from
the use restrictions placed on continued bulk data collection[444]
and does not define “targeted collection.”

Use of FISA-derived
Evidence at Trial

Defendants have the right to challenge the
prosecution’s use of information obtained pursuant FISA or FAA
authorities by moving to suppress the evidence, either on the basis that it was
obtained illegally, or that the surveillance exceeded the bounds of what was
authorized.[445]

In practice, however, it is extremely difficult for the
defense to exercise this right due to the secrecy that pervades the collection
of evidence pursuant to FISA and the FAA. If the prosecution intends to use
evidence obtained from electronic surveillance under FISA, the attorney general
must disclose in advance intent to use that information.[446] However, if the defendant challenges that
information, the attorney general may file an affidavit indicating that
disclosing the information pertaining to the order would harm national
security; if he does so, the court must consider the application and any order in
camera, and the defense cannot participate.[447]
The court can disclose certain information to the defense to help determine if
the surveillance was lawful, but “only where such disclosure is necessary
to make an accurate determination of the legality of the surveillance.”[448]
This means that the defense must operate blindly, challenging the legality of
the order (or surveillance absent a FISC order), or law enforcement’s
compliance with it, without being able to see the materials that initially supported
the surveillance.

The statute requires that similar notice be provided if
information obtained pursuant to the FAA is to be used.[449]
Yet until recently, the government refused to provide such notice by instead
using FAA-obtained information to support a FISA application. Defendants were
provided notice that information was obtained under FISA, but the fact that the
basis for the investigation originated from warrantless surveillance under the
FAA was not disclosed. If the defendants had been aware that they were subject
to warrantless surveillance, they might have filed constitutional or other
challenges.[450] Following
an internal Justice Department debate about whether to disclose the fact that
warrantless surveillance formed part of the chain of information that led to a
FISA order,[451] in
2013 the government began providing such notice.[452]

Since 2007, the FBI has used secret evidence obtained under
FISA to prosecute at least 27 accused terrorists.[453]
These include the following:

Case of Amina Ali and Hawa Hassan:

Amina Ali and Hawa Hassan were arrested in August 2010 as part of a
country-wide investigation into support for the Islamist armed group Al-Shabaab
in Somalia.[454] They
were convicted of providing material support for terrorism for sending clothing
and money to Al-Shabaab. On the same day they were arrested, the Department of
Justice unsealed indictments against 12 other individuals in two other states.[455]
Only during the trial did the public learn that Ali’s and Hassan’s
phones had been tapped for months. Ali’s attorney said the order
authorizing the surveillance was pursuant to FISA but that he never saw the
order or the underlying facts cited in support for its acquisition. He said he
did not know when the surveillance began or ended.[456]
Although he filed motions to suppress evidence obtained pursuant to a FISA
order, the application was reviewed ex parte and in camera. The
government filed a lengthy memorandum in opposition to the defense motion to
suppress, yet the public version contains almost no information about the case
and instead includes only standard legal arguments.[457]
The secrecy connected to FISA warrants prompted others in the American-Somali
community in Minneapolis to fear that they were also under surveillance.[458]

Case of Mehrdad Yasrebi (see above):

A FISA warrant was also used in the case against Mehrdad Yasrebi, prosecuted
for violating OFAC sanctions against Iran. David Angeli, Yasrebi’s
defense attorney, told Human Rights Watch that he considered the process behind
obtaining FISA orders to be fraught with problems and prone to abuse:

In every other case, I get to see
the basis for a search warrant. Here, no one gets to see if the government lied
or if it didn’t present certain evidence.… If [a defense attorney]
has secret clearance, just like the prosecutors do, we should have the same
access. When you remove the defense counsel from the process and don’t
have that check, it creates very real possibilities for abuse.… And when
the government thinks there might be something related to terrorism involved,
the incentive for them to step over the line is even greater.[459]

Case of Abdelhaleem Ashqar:

In 1993,
likely in response to information obtained from Muhammad Salah while under
interrogation in Israel, the FBI obtained a FISA order for electronic
surveillance of Abdelhaleem Ashqar, a former business administration professor
at Howard University.[460] The
FBI also searched Ashqar’s house in December 1993.[461]
Ashqar first learned of the surveillance in court in August 2004 when documents
from that search were entered into evidence against him on charges of criminal
enterprise in violation of federal racketeering laws.[462]
Documents seized from Ashqar’s home were also used as evidence in the
Holy Land Foundation case. The FBI first learned about conference in
Philadelphia, which was a key element of the case, through the wiretap of
Asqhar’s communications.[463]

Holy Land Foundation Case:

The case
against the Holy Land Foundation involved significant information obtained
pursuant to FISA orders. In both trials, the defendants moved to compel
production of the underlying applications for the FISA orders, and to suppress
the evidence acquired pursuant to them. The district judges reviewed the
information ex parte and in camera and denied the defense requests.[464]

Case of the Fort Dix Five:

Some of
the evidence in the Fort Dix Five case came from a FISA order. While the
government declassified much of the evidence, the underlying affidavits
supporting the orders were not declassified.[465]
Although the judge reviewed the underlying FISA application materials,
including for relevance to discovery, his ability to assess discoverability was
hindered by not knowing early on what defenses would be asserted.[466]
Although the defendants challenged the constitutionality of FISA on appeal,
their challenge was denied.[467]

Al-Haramain’s
Challenge to FISA Surveillance

In a
parallel proceeding to the prosecution of Pete Seda, the charity Al-Haramain
came to believe that it was subject to warrantless electronic surveillance in
violation of FISA in 2004; in 2006, it filed suit. In 2007, the Ninth Circuit
Court of Appeals ruled that the suit was not barred by the state secrets privilege.[468] On remand, the district court
found that Al-Haramain had established it had been surveilled and the
government had presented no evidence that established it had a warrant.[469]

The judge
granted summary judgment to the plaintiffs, and awarded $20,400 each to two
Al-Haramain attorneys in liquidated damages for the FISA violation, and $2.5
million in attorneys’ fees and costs.[470] On appeal, however, the Ninth
Circuit ruled that the suit was barred by sovereign immunity,
“effectively bring[ing] to an end the plaintiffs’ ongoing attempts to hold
the Executive Branch responsible for intercepting telephone conversations
without judicial authorization.”[471] The plaintiffs elected not to
appeal to the Supreme Court.[472] The Ninth Circuit’s ruling
means that even if a plaintiff can establish violation of FISA, as
Al-Haramain did, it has no recourse in court. If other circuits follow that
reasoning, the government will remain immune from liability for violating
FISA.

Classified Evidence

Another challenge for the defense in terrorism cases
involves the frequent introduction of classified evidence, which often causes
delays and obstacles to discovery that may affect the fairness of the trial.

The Classified Information Procedures Act (CIPA), enacted in
1980, provides procedures for prosecuting federal criminal cases involving
classified information, including at both the discovery and trial stages.[473]
CIPA was originally passed in 1980 to address cases of “graymail,”
or “the tactic of a defendant who threatens to disclose classified
information in the course of a prosecution,” particularly in cases of
espionage.[474] Today,
CIPA and CIPA-inspired procedures (in civil cases) are frequently used in
terrorism cases where classified information is in play, usually in the form of
classified evidence provided by the government against the defendant.[475]

CIPA requires both parties to provide notice when classified
information is at issue, initially at a pretrial conference.[476]
Courts applying CIPA procedures are called on to determine whether discoverable
classified information can be “(1) omitted, (2) summarized, or (3)
substituted with an admission.”[477] While
this usually occurs ex parte, the record is preserved for appeal.[478]
Upon the government’s request, the court can issue a protective order
preventing defense from disclosing classified information to a defendant.[479]
Where a court authorizes disclosure of specific classified information, the
government may request that in lieu of disclosure the information be
substituted with a summary or an admission.[480]
Finally, where fair trial necessitates the disclosure of classified information
that the government is unwilling to disclose, remedies include dismissal of the
indictment or of certain counts.[481]
Throughout this process, the defendant must retain “substantially the
same ability to make his defense as would disclosure of the specific classified
information.”[482]

CIPA causes significant delays, both because counsel must
obtain security clearances, and because the process of substitutions and
summaries can add months or even years to discovery and pretrial proceedings.
Several lawyers involved in the Barry Bujol case (see section II) said that key
evidence against Bujol was classified, and they faced delays in getting access
to that evidence while waiting for clearance.

CIPA presents particular challenges when it comes to
discovery. Defense counsel may have trouble identifying what information they
believe the prosecution has that would be helpful to the defense. Defense
counsel must do so without consulting their client, affecting the
client’s ability to have effective assistance of counsel. And even if
defense attorneys do identify relevant material, CIPA permits the court to
provide summaries or make substitutions, meaning the defense will never have
access to the original evidence.[483]

Evidence obtained by foreign governments is frequently classified.
In the earlier post-September 11 cases, this tended to involve evidence
obtained when Americans were picked up in foreign countries and interrogated by
foreign agents, often at the behest of the United States.

The following cases illustrate how the introduction of
classified evidence can create serious difficulties for the defense and
undermine the fairness of the trial:

Case of Mohamed Warsame:

Warsame was
held in solitary confinement while awaiting trial for five-and-a-half years,
the longest recorded period of time for any pretrial detainee in the federal
system (see below). In an interview, District Judge John Tunheim attributed
part of that delay to the length of time involved in processing classified
material under CIPA.[484] The
district judge had personally compared all of the unclassified substitutions
proposed by the government with the classified source material.[485]
The slow process contributed to Warsame’s lengthy pretrial detention
under abusive conditions.

Case of Ahmed Abu Ali:

In this case, the
court appointed private attorney Nina Ginsberg well into the proceedings to
review classified evidence for the defense, although she was not otherwise part
of Abu Ali’s defense team. Abu Ali’s main defense lawyers, who did
not have security clearances,[486] were
not allowed access to any classified information or permitted to be present at
hearings determining the admissibility of classified evidence and the
sufficiency of evidence meant to substitute for the classified evidence. This
situation hampered Abu Ali’s defense overall, with Abu Ali’s
long-standing defense attorneys completely in the dark about the defenses
Ginsberg had raised in the classified hearings. “Part of how you develop
your defense is people talking to each other and developing strategies,”
Ginsberg explained. “I wasn’t allowed to tell them anything that
was classified, and I thought there were substantial issues that ought to have
been part of the defense that were excluded by the judge.…There were
entire other defenses that were the subject of classified hearings which we
lost.”[487] Yet
Ginsberg was never able to share these with the main defense team.

Classified
Statements by Persons Subjected to Torture

The
difficulties the defense can face when seeking access to classified
information were dramatically evident in the case against Uzair Paracha.
Paracha sought the testimony of Majid Khan, Ammar al Baluchi, and Khalid
Sheikh Mohammed, who at the time were believed to be in secret custody of the
US government.[488]

While not
conceding that they were in US government custody, the prosecution argued
that for the purposes of the motion, if they were in government custody,
producing them would damage national security by allowing “Al-Qaeda
operatives [to] use the US legal system to interfere with the
military’s prosecution of the war on terrorism.”[489]

The judge
determined that Mohammed’s testimony was not material, but that both
Khan and al Baluchi likely had material and favorable evidence to present.
Saying that he was balancing the government’s concerns of national
security against Paracha’s right to present such evidence, Judge Stein
ordered that unclassified summaries of statements provided by the two men
could be admitted, along with instructions to the jury detailing the
circumstances in which the statements were obtained.

The jury
instruction included that “[t]he witnesses’ statements were
obtained under circumstances that were designed to elicit truthful and
accurate information from witnesses because the statements are relied upon by
United States officials responsible for making national security
decisions.”[490] As we now know, the men were held
in secret CIA custody for years and subjected to incommunicado detention and
torture, calling into question the veracity of their statements.[491] The government—and the
judge—willingly vouched for the truthfulness of statements obtained by
people subjected to torture by the same government, highlighting the problems
that can ensue when a defendant is denied full access to information because
it is purportedly classified.

Paracha’s
case is somewhat unusual because it was the defendant, not the government,
who had an interest in establishing the veracity of witness statements that
may have been taken under duress. Judge Stein did not permit the government
to use the statements affirmatively, perhaps in acknowledgment of that fact.

Because the defense does not have the ability to review the
classified information, it operates blindly when challenging the adequacy of a
summary or substitution. While the system relies on prosecutors and district
court judges to protect the rights of the defendant, the system can fail,
either through bad faith or because structurally the absence of the defense
means the trial judge will not have the benefit of hearing all sides of an
issue (though the defense can present its theory of the case to the judge in
order for him or her to take it into consideration when reviewing the
classified material).

In Pete Seda’s case, the Ninth Circuit found the government’s
failure to make an appropriate substitution—and the district
judge’s acceptance of the inadequate substitution—an additional
basis for ordering a new trial for Seda. The appeals court concluded
“that the substitution’s language unfairly colored presentation of
the information and, even more problematic, that the substitution omitted facts
helpful to Seda’s defense.”[492]
Although the court did not find bad faith on the part of the prosecutors, it
found that “the government appears to have looked with tunnel vision at
limited issues that it believed were relevant.”[493]

Anonymous and Biased Juries

While the majority of terrorism cases (like most criminal
cases) do not go to trial, those that do face challenges obtaining unbiased
juries, as well as the use of anonymous jurors—a practice rare in
criminal cases though used in high-profile, organized crime trials.

Anonymous juries—that is, juries whose names and
identities are shielded from the public, and sometimes even from the parties
and judge, in order to protect their safety—were used in several of the
cases we examined, including the cases of Fort Dix Five, Abdelhaleem Ashqar and
Mohammed Salah. If a judge declares the jury “anonymous,” usually
for security reasons, defense lawyers may be hampered from examining
prospective jurors for bias.

Moreover, identifying unbiased jurors, whether anonymous or
not, is particularly challenging in terrorism cases, especially those involving
Muslims. In federal terrorism prosecutions, some judges have elected to use
written jury questionnaires, which allow them ask a broad range of questions
that may root out more prospective jurors who may have bias towards the
defendant. In the case of Hossam Smadi (who pleaded guilty shortly before he
was scheduled to go to trial) the judge provided a questionnaire to the
approximately 175 members of the jury pool. One of Smadi’s defense
attorneys, Richard Anderson, described the judge as “outstanding”
and felt that the questionnaire was appropriately crafted to identify bias.[494]
But many judges do not use questionnaires, which can make it harder to identify
biases.

Pretrial Solitary Confinement and Other Conditions
of Confinement

The US government frequently imposes solitary confinement on
suspects in terrorism cases prior to trial.[495] Prolonged
pretrial solitary confinement not only raises concerns of cruel and inhumane
treatment or punishment, but it also has an impact on defendants’ ability
to assist in their own defense, and may compel them to waive their trial rights
and accept plea deals.[496]

We documented the experiences of 24 men who were held in
solitary confinement on terrorism charges prior to conviction, often for months
or years on end.[497] In
some of these cases, solitary confinement was imposed as “administrative
segregation,” that is, not for a disciplinary infraction but purportedly
for the security of the prison or the personal security of the detainee.[498]

For example, Syed Hashmi was held in solitary confinement
for about three years, imposed as administrative segregation and pursuant to
Special Administrative Measures (SAMs)—special restrictions imposed to
protect national security or prevent disclosure of classified material (SAMs
are discussed in detail in section VI)—for much of that time.[499]
The UN special rapporteur on torture, Juan Mendez, who sought information from
the US government about Hashmi, said its explanation of the case “made no
mention of Mr. Hashmi’s behavior in custody as a reason for any
disciplinary sanction” but appeared based on “the seriousness of
the charges he faced.”[500] He
concluded that Hashmi’s prolonged pretrial solitary confinement
constituted a violation of his rights under the Convention against Torture
“absent contrary evidence.”[501]

Barry Bujol was kept in isolation in his cell for 19 months
prior to his sentencing, in the special housing unit of the federal detention
center in downtown Houston.[502] Bujol
had only one hour of recreation out of his cell each day, during which he
“occasionally, but rarely” had someone else in the recreation room
with him.[503] Bujol
expressed his suffering in a story he drafted prior to his sentencing, titled Dungeon
in the Sky. He begins the piece:

Solitude can be many things. It can be a time for
reflection, a healthy and therapeutic exercise that inspires creativity. It can
be a sanctuary for spiritual growth and self-discovery…. Unless of course
solitude is how you live daily—and you’re forced to. Then it
becomes much more than that. Then it becomes what people in here call
it—a hole. A hole that swallows the spirit like a black hole in space
swallows all light and matter. Then it strips the hours of their significance
and the days of their meaning[,] turning them instead into a perpetual void of
timelessness. It becomes a living tomb constricting movements, thoughts, and
every thing else that makes us human[,] the way a boa constricts its prey. At
least for the prey death is imminent.[504]

In at least some cases we reviewed, the government’s
restrictions appear to have far exceeded what was necessary to address the stated
security concerns. For example, in the cases of Adnan Mirza and Tarek Mehanna,
who were ultimately convicted of non-violent crimes, each was held in pretrial
solitary confinement for more than two years. They then were told they were
being held in solitary for their own security. Yet it is hard to justify the
severe restrictions on their human contact on those grounds: it took three
weeks for Mirza to receive mail from his family, even from those who lived in
Texas, and he was allowed only a single 15-minute phone call to his family a
month.[505] Jay
Carney, Mehanna’s attorney, noted that, “You can protect an inmate
and still allow him to have contact with other people on a regular basis, and
not be put in that cell sometimes 24 hours a day.”[506]

Mohammed
Warsame: Five Years in Pretrial Detention

Mohammed
Warsame, originally held as a material witness, was subjected to pretrial
solitary confinement for five-and-a-half years. He was held in a 10 x 10-foot
cell in a state prison alongside prisoners convicted of serious crimes.[507] He was permitted one hour of
out-of-cell exercise and one shower a week.[508]

“He
has not been outside nor been near an open window, let alone look out a
closed window to the outside prison yard” for four years, his lawyer
wrote in 2007, “except for the few times he has been transported to
court.”[509]

District
Judge John Tunheim grew so concerned about Warsame’s solitary
confinement that at times he would hold status conference hearings simply to
allow Warsame to leave the prison and go to court, he told us.[510] Warsame ultimately pled guilty to
charges of conspiracy to provide material support for terrorism. Under the
plea deal, he was sentenced to 92 months in prison, including time served,
and immediately deported to his home country of Canada. As professors Laura
Rovner and Jeanne Theoharis put it, “forcing Warsame to leave the
country seems at odds with the immediate danger repeatedly asserted by the
government of Warsame’s unmonitored communication.”[511]

Other Ill-Treatment in Pretrial “Special Housing Unit”
Detention

More than half of all individuals being held pretrial by the
Bureau of Prisons who are charged with terrorism or terrorism-related
offenses—30 out of 52—are held in Special Housing Units (SHUs).[512]

SHUs segregate these individuals from the general prison
population, putting them in solitary confinement or other “restrictive
conditions.”[513] Many
individuals held in pretrial SHUs reported poor conditions and treatment that,
particularly when considered cumulatively with conditions of physical and
social isolation, could amount to ill-treatment in violation of international
law (see section VI). Human Rights Watch has previously documented similarly
abusive conditions of confinement in SHUs for individuals held as
“special interest” detainees shortly after 9/11 and individuals
held under the material witness statute.[514]

Among the poor conditions faced by many individuals held in
solitary confinement was extreme cold, including for defendants at New York
Metropolitan Correctional Center (MCC) “10-South,” and other
defendants in metropolitan detention facilities, such as the Fort Dix Five
defendants held at Philadelphia FDC.

Conditions
at MCC 10-South

MCC
10-South is a SHU in New York City that includes six individual cells that
have repeatedly housed individuals indicted on terrorism or terrorism-related
charges, including those under Special Administrative Measures (SAMs)
(discussed in section VI). Individuals are held in 23 or 24-hour solitary
confinement. Public access to 10-South is severely limited and many prisoners
there are under SAMs that bar them from speaking with the media or anyone
other than their attorneys and family members (who are, in turn, barred from
relaying any information). These restrictions limited our ability and the
ability of other researchers to document conditions there. However, former
detainees have described harsh conditions and harassment:

Tarik Shah, a professional jazz bassist and martial arts instructor who
was prosecuted after an elaborate sting operation that spanned four years and
involved two informants, spent 33 months in solitary confinement at 10-South.
In a letter to his sister, he described a “bright
light on for twenty-four hours” a day.[515] He described his
cell as “extremely cold throughout the year”: “[W]e could not purchase hats,
gloves, extra sweats or extra thermals, so I wore an extra pillow case on my
head, three pairs of socks on my feet, a pair of socks on my hands for
gloves…just to be somewhat insulated.” [516]

Uzair Paracha was held in pretrial solitary confinement at 10-South for
23 months. “Some officers…came to the door and looked straight at
me through the windows while I was sitting on the toilet,” he wrote.
“Other times I overheard them talking to me or about me while I was on
the toilet, talking about how we would clean ourselves afterwards.… I
felt too embarrassed and humiliated to discuss or complain about it.”>[517] Paracha also described guards
taking his blankets and clothes in wintertime, and blasting the radio while
he and other Muslims prisoners were praying, turning it down when they
finished. “They knew we couldn’t talk or do other things during
our prayer,” Paracha wrote, and would purposefully deliver food or ask
for food trays back while Paracha was praying.[518]

Some defendants or their families also reported harassment
by particular correctional officers at pretrial facilities. For example, all of
the Duka brothers described prison officials at Philadelphia FDC ransacking
their cells and throwing religious materials, including the Quran, on the floor
while leaving non-religious materials untouched.[519]

Ahmed Bilal, one of the “Portland Seven” (see
section II), said that harassment by guards in one facility was so severe that
members of the white supremacist gang European Kindred, who were housed with
him, began standing up for him against the guards.[520]
Bilal said that attorney visits that took place through a glass wall did not
require strip-searching so he would request that type of visit, but the guards
would strip-search him anyway.[521]

Dr. Sami Al-Arian[522] was
subject to frequent strip searches at the SHU at Coleman USP, a court order
stopped them, even though he was denied any contact visits.[523]
Al-Arian complained that he was shackled at his ankles and wrists whenever he
left his cell. Prison guards refused to carry his legal documents to meetings
with counsel, so Al-Arian had to bend over and balance a stack of files on his
back while walking, “[l]ike an animal,” his attorney Linda Moreno said.[524]

Impact of Pretrial Solitary Confinement on Pleas and Trial Preparation

In some cases, the emotional and psychological toll of
solitary confinement may have impeded defendants’ abilities to prepare
for their defense or impaired their judgment—even if the confinement was
for days, rather than weeks or months.[525] A
number of defendants, their relatives, or attorneys said the experience of
solitary affected the defendants’ interactions with attorneys and
willingness to plead guilty:

Case of Oussama Kassir:

Kassir, who has a
documented history of mental illness, spent one-and-a-half years at MCC 10-South
and was held continuously in a cell with no natural light.[526]
Under SAMs, Kassir was barred from talking with other inmates or
correctional staff. Denied phone calls to his family for seven months,
Kassir’s only human contact was with his lawyers, consulate
officials and prison staff.[527]
His “only exercise facility was the provision of a cell identical to
his own,” according to a statement his defense counsel provided to
the European Court of Human Rights.[528]
Kassir’s attorney, Marc DeMarco, told us that Kassir often spent the
first hour of their meetings only able to speak about the horrible
conditions of confinement.[529]
Though Kassir was an intelligent person, his focus on his conditions made
him seem like a “rambling lunatic” during their discussions.[530]
Kassir’s counsel moved to lift the SAMs, arguing that they were
restricting legal access, destroying Kassir’s mental well being, and
harming his ability to prepare for trial.[531]
The motion was denied.[532]

Case of Yassin Aref:

Aref, an imam convicted in October
2006 of providing material support for witnessing a loan agreement between
an informant and mosque congregant, and who had no criminal record or
history of violence (see section II), began having trouble communicating
after he was in solitary confinement at Raybrook prison, his attorneys
told us.[533]
According to attorney Kathy Manley: “When he was at Raybrook, he was
shaking and crying, he couldn’t put thoughts together, which was
unusual for him. He couldn’t put together coherent sentences after
being in solitary confinement. He was in shock.” An activist who
visited Aref at Raybrook said: “I said something to him and he was
trying to say something. He couldn’t get the words out, he was just
trembling.”[534]

Case of Raja Khan:

Khan, who bragged to undercover
FBI agents about a connection to Ilyas Kashmiri (a senior Pakistani leader
of Harkat-ul-Jihad al-Islami) but who never actually made any such contact,
was held in solitary confinement in the SHU at Chicago’s
Metropolitan Detention Center for about 16 months, from his arrest until
he was released after taking a plea deal.[535]
Khan’s presentence investigation report (a report that informs a
court’s sentencing decision, and that is typically prepared by a
probation officer) found that his 16 months of pre-conviction solitary
confinement “had serious and permanent consequences on his physical
and mental health.”[536]According to
Khan’s son-in-law, Waseem Serwer, he developed arthritis and became
unable to walk.[537]
Khan lost up to 45 pounds and developed high blood pressure, high
cholesterol, dry and itchy eyes, and sinus problems that he did not have
prior to his detention.[538] Khan’s
wife told the court that the 16 months of solitary confinement had
“destroyed his health.”[539]
Khan reported suffering “depression so severe…that he would
have committed suicide had it not been for his religion.”[540] Serwer
told us that when they talked on the phone, Khan appeared depressed and
ready to give up hope: “He started talking about not making it,
[asking us to] take care of his other kids… He was distressed to the
point of not knowing what happened to himself.”[541]
Khan’s family believes he took the plea deal rather than contest the
charges at trial because he was traumatized and feared long-term solitary
confinement. Serwer said: “He knew only what he had seen, and he
based his decision on that.”[542]

Case of Uzair Paracha:

Paracha was put under SAMs
nine months after his December 2003 arrest, at a time when he was refusing
a plea deal (he was ultimately convicted at trial of providing material
support for terrorism and other offenses and sentenced to 30 years). The
SAMs initially barred him from talking to any other inmates, and he was
only permitted to speak to prison guards. “You could spend days to
weeks without uttering anything significant beyond ‘please cut my
lights,’ ‘can I get a legal call/toilet paper/ a razor,’
etc., or just thanking them for shutting our lights,” Paracha wrote
in an email to Human Rights Watch. Paracha developed claustrophobia and
would eventually be diagnosed with depression that required medication:
“Many times during the day I saw myself doing things that I saw
people with psychological problems do. The way I sounded (my voice), my
gestures,” he stated.[543]
Paracha’s SAMs were purportedly based on the government’s
belief in Paracha’s dangerousness and connections with Al‑Qaeda,
yet that rationale evidently did not extend far: the government offered
Paracha a plea bargain of only 22 months’ imprisonment, which he
refused.[544]
“I faced the harshest part of the SAMs while I was innocent in the
eyes of American law,” Paracha wrote. After Paracha was convicted in
December 2006, the SAMs were modified, permitting him to communicate with
other inmates. “The fact that they became more lenient about a month
after my conviction was counterintuitive and made the SAMs look more like
a pressure tactic and less like any security measures,” Paracha
wrote.[545]

V. Disproportionate Sentences

Sentences in terrorism and terrorism-related cases vary
considerably. In the 494 terrorism and terrorism-related prosecutions we
reviewed based on Department of Justice data, defendants who went to trial
received a median sentence of 11.3 years, while those who took plea agreements received
a median sentence of 3.2 years. More than one-third of those who took a plea
deal received either no prison sentence or a sentence of time served.[546]

However, 91 defendants received sentences of 15 years or more,
including 19 life sentences (which, in the federal system, means life without
the possibility of parole).[547] Over
one in ten of defendants who were convicted by trial received a life sentence.[548]
In many of the cases we documented, these lengthy sentences appeared
disproportionate to the underlying offense.

Lengthy sentences violate international human rights law and
US constitutional law when they are grossly disproportionate to the offense
committed and the individual’s culpability.[549]
Both US and international human rights jurisprudence on sentencing emphasize
the importance of a judicial determination based upon individualized
consideration of the defendant.[550]

Disproportionate sentences are a pervasive problem in the US
criminal justice system, as Human Rights Watch has documented in various
contexts.[551] Under
federal law, sentences should be no longer than necessary to further the
purposes of punishment.[552] In the
terrorism context, disproportionate sentences can occur due to the use of “terrorism
adjustments” which may be based on allegations of terrorist involvement
that are not proven in a criminal trial.

The “Terrorism Adjustment”

Federal judges making sentencing determinations for any
federal crime are to take into account as a starting point the guidelines
issued by the US Sentencing Commission. Because the guidelines are advisory,
judges may depart from the sentencing ranges they establish to lengthen or
reduce sentences.[553] By
statute they must consider a range of factors in sentencing, including the
individual characteristics of the defendant and the purposes of sentencing as
applied to a particular case.[554]

The sentencing guidelines establish sentencing ranges based
on a matrix, which cross-references 43 “offense levels” with six
“criminal history” categories.[555] For
example, the offense level for homicide is the highest, 43, while involuntary
manslaughter starts at level 12.[556] The guidelines
also contain “adjustments” based on qualities of the offense, the
offender, or the victim. These adjustments have the effect of raising, and in
some cases lowering, the offense level or criminal history category level. [557]

Among all of the adjustments in the federal sentencing
guidelines system, the terrorism adjustment has the most drastic effect of
lengthening sentences, and it stands out for applying across a wide range of
conduct.[558] (The
history of the adjustment is briefly explained below.) The adjustment raises
the offense level by 12, and if the resulting offense level is less than 32, it
creates a minimum offense level of 32—regardless of the character of the
actual crime. It also automatically raises a defendant’s criminal history
level to category 6, the highest category, regardless of the defendant’s
actual criminal history.[559] As one
judge in a terrorism case put it, the effect is to “impute to a defendant
who has had no criminal history a fictional history of the highest level of
seriousness.”[560]

The government has successfully sought the terrorism
adjustment for 259 individuals since 2002, the first year statistics are
available. In 2012, the adjustment applied to 46 defendants, while in previous
years, it applied to an average of 28 cases per year, according to our
calculations based on information publicly available on the US Sentencing
Commission website.[561]

In real terms, application of the terrorism adjustment
results in an absolute minimum sentence of 17.5 years for an offense (unless
the offense carries a lesser statutory maximum). On its own, an increase of 12
offense levels can add as much as 20 years to a sentence, while a jump to the
highest criminal history categorization can also add several years to a
sentence. Taken together, the two aspects of the terrorism adjustment have the
potential to add 30 years to a sentence or lead to life imprisonment for a
crime that, without the adjustment, might otherwise entail only a sentence of
five years.[562]

In addition, mandatory minimum sentences require judges to
impose specified minimum prison terms. Created by various federal statutes,
mandatory minimum sentences are typically triggered by aspects of criminal
offense conduct or a defendant’s criminal history, and result in longer
sentences.[563] As
Human Rights Watch has reported in the past, mandatory minimums are one of the
most significant obstacles to fair sentencing in the criminal justice system.[564]

Lengthy Sentences Based
on Unproven Conduct

Under the federal sentencing system, sentences are not
limited to the conduct for which an individual was charged or convicted but
rather are based on a court’s determination of a defendant’s
“actual conduct.”[565] As a
result, an individual’s sentence may be dramatically lengthened based on
accusations of conduct that were not assessed by a jury, let alone determined
beyond a reasonable doubt. (Mandatory minimum cases are a recent exception.)[566]
Although this sentencing scheme has been upheld by the Supreme Court,[567]
it raises due process concerns particularly in the context of the terrorism
adjustment, where the potential for government abuse—making inflammatory
suggestions of a terrorism connection, invoking secrecy to explain evidentiary
gaps—is too high, and the cost of a vastly lengthened sentence is too
great.

For example, Abdelhaleem Ashqar was sentenced to about 11
years (135 months) for obstruction of justice and criminal contempt, after he
refused to testify before a grand jury (see section IV). These offenses usually
carry sentences of five years or less, but after the trial and during the sentencing
stage the prosecution asserted Ashqar had “engaged in numerous violations
of federal law”—offenses that it had not charged or convicted him
on—“all in the service of a terrorist organization.”[568]
It asserted that Ashqar’s refusal to testify before a grand jury was
likewise “in the service” of a terrorist organization, although
this question was never put to a jury.[569]

To punish defendants for conduct that was not alleged or
proven at trial deprives them of the opportunity to fully develop the facts and
evidence necessary to refute accusations of terrorist connection or
affiliation. Moreover, it creates perverse incentives for the government, which
can charge lesser conduct that is easier to establish at trial, and then invoke
inflammatory allegations of terrorist connection at the sentencing stage.[570]

Lengthy Sentences Based
on Non-Violent Conduct

When the terrorism adjustment was first introduced in 1994,
it applied to a relatively small category of offenses: any felony that
“involves or is intended to promote international terrorism” if the
felony did not already involve terrorism as an element of the crime.[571]
However, in April 1996—in a law passed in response to the 1995 Oklahoma
City bombing—Congress directed the US Sentencing Commission to expand the
terrorism adjustment to apply domestically, without requiring an international
nexus.[572]

Today, the terrorism adjustment applies to any
“federal crime of terrorism”—a category that is defined
expansively by statute. Accordingly, the terrorism adjustment may apply as much
to violent offenses—such as using weapons of mass destruction and missile
systems designed to destroy aircraft—as it does to non-violent offenses
such as engaging in financial transactions with a country supporting
international terrorism. Indeed, between 2006 and 2011, 46 of the terrorism
adjustments applied were for material support to a foreign terrorist
organization, according to information publicly available on the US Sentencing
Commission website.

In the Holy Land Foundation case, Shukri Abu Baker was
convicted of conspiracy to provide material support and providing material
support (see sections III and V)—charges that each carry a statutory
maximum of 15 years. Yet Baker was sentenced to 65 years in prison based on a
terrorism adjustment.[573] The
government did not allege that the Holy Land Foundation or Baker was involved
in violent activity of any kind, or that Baker or the organization ever
provided money directly to a terrorist organization. Instead, the allegations
were that by contributing to charitable work in the Occupied Palestinian
Territories, the Holy Land Foundation helped Hamas gain supporters among the
civilian population. Though Baker had no criminal history whatsoever, his
sentence was based on a criminal history level equal to that of someone who had
been convicted of second-degree murder.[574]

After Sabri Benkahla was acquitted of charges that he had
attended a terrorist training camp and fired weapons there, he was questioned
by the FBI and subpoenaed to testify before a grand jury on the same matter.
The government then launched a second prosecution, charging that Benkahla had
lied to the FBI and a grand jury by denying his personal involvement and
knowledge of acquaintances’ involvement in training camps. After a second
trial, Benkahla was convicted of obstructing justice on account of false
declarations to a grand jury and of making false statements to the FBI. Though
the judge reasoned that Benkahla’s false declarations “neither
directly ‘involved’ nor were ‘intended to promote’ a
federal crime of terrorism,” he applied the terrorism adjustment, reasoning
that the false declarations had actually obstructed the FBI’s
investigation of a terrorism crime.[575]
Without the adjustment, Benkahla faced a sentence of two and three-quarters to
three and a half years (33 to 41 months). With it, he faced a sentence of about
17 to 22 years (210 to 262 months)—the same or worse sentence as
defendants who committed “more severe, violent offenses,” like the
kind of which Benkahla was acquitted in his first trial.[576]

Judges have the discretion to “depart downward”
from sentences that the Guidelines recommend, but even where they exercise
their discretion, the terrorism adjustment drives up the length of sentences
significantly. In Benkahla’s case, the judge concluded the likelihood he
would commit another crime was “infinitesimal,” and he sentenced
Benkahla to 10 years. Yet this was still almost seven years more than Benkahla
would have faced without the terrorism adjustment.[577]

Lengthy Sentences in
Informant Cases

In some of the cases we reviewed involving informants,
defendants received particularly harsh sentences based on elements of the
crimes that informants suggested.

The Newburgh Four case (see section II) is perhaps the most
egregious example. The informant in the case introduced the idea of attacking
Stewart Air Force Base with a Stinger missile and provided the fake missile to
the defendants. As District Judge Colleen McMahon explained:

There is no way that these four defendants would have
dreamed up the idea of shooting a Stinger missile at an airplane or anything
else; there is certainly no way they could have acquired a Stinger missile,
operative or inert, unless the government provided them one.[578]

Without the Stinger missile, the government could still have
sought life imprisonment for the defendants based on other aspects of the case;
however, the men would have been eligible for a judge’s discretionary
reduction in sentence length. The Stinger missile element enabled the
government to use a mandatory minimum sentence to ensure that if convicted, the
defendants would receive at least 25 years.[579] The
judge concluded that she had no discretion to sentence the defendants to
anything less, though she expressed concern that “the only reason the
Government introduced the missile element into this case was to prohibit me
from sentencing the defendants to less time than that.”[580]

The terrorism adjustment can result in individuals charged
with conspiracy and attempts receiving the same sentences imposed for actual
commission of murder.[581] This
outcome is of particular concern especially where the defendants did not
propose the conduct that served as the basis for the terrorism adjustment, as
in the case of the three Duka brothers, who were sentenced to life imprisonment
in the Fort Dix Five case (see section II), based on a fake plot negotiated in
conversations held in Arabic between one of the informants and the co-defendant
Mohammed Shnewer; the Duka brothers, who spoke English and Albanian alone and
did not understand Arabic, were not included in any discussions about a plot.[582]
The Dukas were convicted of one count of conspiracy to commit murder and three
counts of illegal possession of firearms. Conspiracy to murder, without the
terrorism adjustment, carries a sentence ranging between 12 ¾ years to
24 ½ years (135 months to 293 months), depending on the
defendant’s criminal history, but with the terrorism adjustment the guidelines
recommend the same sentence that first-degree (premeditated) murder carries:
life imprisonment.[583] The
Duka brothers were in their 20s at the time of their sentence; without the
adjustment, they would have been middle-aged men at the time of their release,
while with it they will spend perhaps as much as 60 years in prison, and die
there.

VI. Imprisonment and Treatment

US prisons held 475 people indicted on or convicted of terrorism or
terrorism-related offenses as of October 2013, according to the government
response to our FOIA request.[584] Some
are held in prisons under harsh conditions that include prolonged solitary
confinement and severe restrictions on their communication with family and
others.

Some restrictions are imposed pursuant to Special
Administrative Measures (SAMs), which apply to certain prisoners—not only
terrorism detainees—on the grounds that they are necessary to protect
national security or prevent disclosure of classified material (as previously
noted, these conditions may also be imposed pretrial, raising concerns over fair
trial rights). Other prisoners were placed in Communication Management Units
(CMUs), which monitor prisoners 24 hours a day.

We reviewed the treatment and conditions of 35 defendants
and prisoners in terrorism cases, 9 of whom were not involved in the main cases
we focused on for this report (for a list, see Appendix - B). While the Bureau
of Prisons denied 16 out of 20 requests we made to meet with prisoners, we were
able to communicate with 12 incarcerated men by phone, letters, or email.

In several of these cases, the Bureau of Prisons did not
inform the detainee of the basis for imposing the restrictions—whether it
was based on an assessment of the severity of the crime, the security of the
facility or of the detainee, or for other reasons. Accordingly, it was impossible
to independently assess whether the restrictions were disproportionate to the
government’s objective. In many cases, this secrecy also stymied prisoners’
ability to learn about the basis for their treatment, or what steps they could take
to end their solitary confinement or restrictions on their communications with
family.

Background: Tightening of
Restrictions in Response to “Prisoner Radicalization”

In the years after the September 11, 2001 attacks, media and
congressional concern over supposed “prisoner
radicalization”—the idea that prisons are a “fertile
ground” for inmate conversion to politicized and violent ideology related
to Islam[585]—led
the Bureau of Prisons to impose significantly harsher restrictions on terrorism
detainees and prisoners.[586]

In 2006, seeking to monitor “100 percent” of all
terrorism inmate communications,[587] the Bureau of Prisons began adopting policies and practices to restrict the
“volume, frequency, and methods” of terrorism inmate communications,[588]
and it began to extensively monitor prisoner communication with family and
attorneys, and prohibit contact visits with families (discussed below).[589]

The Bureau of Prisons also made plans to “consolidate
all international terrorist inmates in approximately six institutions for
enhanced management and monitoring.”[590] We are
only aware of three special units—two Communication Management Units
(CMUs) and a unit at the Florence supermaximum security prison (“ADX
Florence”).[591]

Prolonged Solitary Confinement and Restrictions on Family
Contact

As Human Rights Watch has previously documented,[592]
jails and prisons across the United States often respond to prison or inmate
management challenges by segregating individuals from the general population,
often through prolonged physical and social isolation, for hours, days, weeks,
or even years. Isolation for 22 hours per day or more, and for one or more
days, fits the generally accepted definition of solitary confinement.[593]
When it is prolonged, solitary confinement can constitute cruel, inhuman or
degrading treatment prohibited by human rights treaties to which the US is
party.[594] For 23
men whose experiences we documented, the length of pretrial or post-conviction
solitary confinement was measured in months or years, not weeks.[595]
The mental pain and suffering caused by isolation was sometimes exacerbated by
uncertainty about how long solitary would last.[596]

Prisoners with whom we spoke or corresponded described their
solitary confinement as resulting from decisions to put them in administrative segregation
based on their security classification. Prisoners in medium-security and
low-security prisons experienced solitary as punishment (often called
disciplinary segregation).[597]

Special Units for “Terrorism” Prisoners: ADX and CMUs

The Bureau of Prisons says it places the “most
dangerous terrorists” at the Administrative Maximum Penitentiary (ADX) in
Florence, Colorado, while other so-called “terrorist” inmates have
been transferred to Communication Management Units “to consolidate
them” and “increase the monitoring and management of these
inmates.”[598] According
to our review of DOJ data, more than a quarter of prisoners convicted of
terrorism or terrorism-related offenses were held in these facilities as of
July 2013.[599]

ADX Florence

The Bureau of
Prisons held 41 prisoners it designated as “terrorists” at
ADX Florence, the federal supermax where nearly all prisoners are held in at
least 23-hour solitary confinement, as of October 2013.[600] One of the prison’s former wardens
has described ADX as a “clean version of hell.”[601]

For two days a week, a typical ADX prisoner spends the
entire day secluded to his single cell, which measures between 75 and 87 square
feet, depending on the unit.[602] He is
deprived of almost all human contact during these periods, except for
perfunctory, impersonal exchange with correctional staff.[603]
On the other days, the prisoner remains confined this way for 22 or 23 hours a
day, but is given an hour of indoor recreation, alone in a room completely bare
but for a pull-up bar; or an hour of outdoor recreation, in a cement enclosure
so small that he is only able to take a few steps in each direction.[604]
Every time he leaves his cell for recreation, he is strip-searched.[605]
For most prisoners at ADX Florence, communication with other inmates is never
directly face-to-face and is always mediated by bars or concrete walls—or
involves shouting through toilets and vents.[606]

Dritan Duka, who
is held in solitary confinement at ADX Florence,[607] described even recreation time as
dehumanizing:

You can only see the sky. It’s all steel. You feel
like an animal in a cage. When it’s time to eat, they feed you...
Actually [dogs] have more freedom than we do. ... We’re in a cage all
day, they shove foods in the cell. Then we got a little walk. Then they put us
in another cell. I'd rather be in a zoo than over here. People walking by,
looking at you like an animal in a caged exhibition.[608]

Dritan said he is able to communicate with other prisoners
on his “range” (prison floor and section) by screaming through
doors and, during outdoor recreation, talking to prisoners who are in separate
cages.[609] These
brief periods of communication were insignificant compared to his overall
experience of isolation: “There’s a lot of times the walls are
caving in. It’s—you can't talk to nobody… It's like staying
alone in a bathroom for three days.”[610]

Human Rights Watch has
previously reported on conditions at ADX Florence, which houses not only
terrorism detainees but also leaders of violent gangs and prisoners with a
history of committing violent offenses against other prisoners or corrections
officers. We noted in 2001 that inmates there could be subjected to
“years of confinement in conditions of extreme social isolation, reduced
sensory stimulation, and rigorous security control.”[611] After a 2007 visit to ADX Florence, Human Rights
Watch wrote to the Bureau of Prisons to
express concern about serious problems, including the mental health impact of
long-term isolation and highly limited exercise there, and reports of force
feeding inmates on hunger strikes.[612]

While we have not, for this
report, conducted a thorough examination of conditions at ADX Florence, the
cases we examined continue to raise human rights concerns because of the degree
of isolation for prisoners and the inadequate process for securing transfer out
of the prison into a less restrictive facility.

Communication Management Units

Another 77 post-conviction prisoners designated as “international
terrorists” or “domestic terrorists” are in two Communication
Management Units (CMUs).[613]
The Bureau of Prisons describes the CMUs as units for prisoners who do
“not need the security requirements at [ADX] Florence” but
nevertheless require “closer monitoring.”[614] Of the first 54 prisoners transferred to the
CMUs, 39 were Muslim.[615] Civil liberties groups and
activists allege that the Bureau of Prisons subsequently transferred
environmental and political activists convicted of terrorist offenses to the
CMUs in response to media criticism that it was targeting Muslims.[616]

“Other than ADX, the CMUs are the most restrictive
facilities in the federal system,” a federal appeals court judge wrote in
2010.[617] The
CMUs are similar to medium-security units in terms of permitting inmates to
interact extensively with each other outside of their cells. However, inmates
are constantly surveilled and their communication with the outside world is
heavily restricted (including with their families, as described below). There
are cameras and listening devices positioned throughout the CMUs, and all
inmate conversations are audio-recorded and monitored by the government (except
for inmate conversations with their attorneys).[618]

Prisoners and defense lawyers described poor prison
conditions at both the Terre Haute and Marion CMUs.[619]
At the Terre Haute CMU, they described extreme cold during the winter, insects
and rodents, flooding during rainstorms, and extreme heat during the summer
with fans so loud that “they gave us earplugs to put in our ears, to keep
from damaging our hearing,” a former inmate told us.[620]
One defendant described it as “dangerously and poorly ventilated,”
explaining that windows on either side of the building were “bricked in
from the outside,” making the building “like an oven” in
summer.[621]

The recreation area at the Marion CMU is “all kennels
on concrete,” environmental activist Andy Stepanian, who was among the first
inmates at the facility, told us. In the recreation area, “the ceiling
was a chain-link fence and dome of razor wire. So there was open sky but there
was razor wire and dead birds between you.”[622]

Several prisoners and their families reported problems
accessing medical treatment at the CMU, particularly on weekends and holidays.[623]
The CMU functions like “a bubble,” as one defense lawyer explained:
prisoners could move freely within the unit, but any movement outside of it was
highly constrained, leading to delays in medical attention.[624]
Inmates also have few opportunities for work and education in comparison to
other federal inmates in medium- or low-security prisons.[625]

Several CMU inmates and defense lawyers also described
harassment, intimidation and retaliation by CMU prison guards against Muslim
inmates.[626] While
a significant majority of the CMU inmates are Muslim, inmates described few accommodations
made for Islamic religious practice in comparison with other religions.[627]

Current and former inmates reported arbitrary denials and
delays in their ability to send and receive correspondence, including legal
mail. Mail is monitored by the Bureau of Prisons’ Counterterrorism Unit.[628]
Eljvir Duka, who is currently held at Marion CMU, said he has continuously been
denied receipt of materials his attorney sent him: audio recordings of
conversations the informants in his case taped for the FBI, which were provided
through the discovery process of his trial.[629] Though
they are vital to his ability to prepare for his habeas corpus petition, the
CMU returned the material to his attorney without allowing him access.[630]

Special Administrative Measures

In about three dozen terrorism cases,[631] the government has used Special
Administrative Measures (SAMs): restrictions imposed to protect national
security or prevent disclosure of classified material. SAMs ordinarily prohibit
defendants, attorneys and their families from communicating about the SAMs to
each other—or anyone else.

This “gag order” of sorts limited our ability to
document the impact of SAMs, because family members and defense lawyers were
concerned that by speaking with us or providing certain details, they might
inadvertently violate SAMs. Bars on communicating with journalists, which are
often imposed through SAMs, have also resulted in an information void about the
government’s practices.[632] We
nevertheless documented, in limited form, the experiences of six prisoners
currently or formerly under SAMs. We also reviewed, in redacted form, the SAMs
modification and extension orders for between 20 and 22 prisoners, which the
Department of Justice provided in response to our FOIA.[633]

Two regulations authorize SAMs: the National Security rule
and the Prevention of Acts of Violence and Terrorism (“Terrorism”)
rule.[634] Both
rules provide that SAMs “ordinarily may include housing the inmate in
administrative detention” and may limit, among other privileges,
“correspondence, visiting, interviews with representatives of the news
media, and use of the telephone.”[635] In
addition, the Terrorism rule permits the attorney general to order monitoring
of attorney-client communication.[636] After
9/11, the SAMs regulations broadened to apply not just to post-conviction
inmates, but also defendants detained pretrial, witnesses, and immigration
violators.[637]

The number of inmates under SAMs has grown since regulations
were substantially broadened the month after 9/11. In November 2001, there were
only 16 individuals under SAMs—“a very small group of the most
dangerous inmates,” according to then-Assistant Attorney General Michael
Chertoff.[639] Since
2009 the number of prisoners under SAMs termed “terrorism-related
inmates” has held steady at about 30.[640] The
increase may partly owe to a 2006 recommendation from the Department of Justice
Office of Inspector General to consider the application of SAMs for each
“pretrial or convicted inmate associated with terrorism.”[641]

Our review of the known cases suggests that typically these
individuals were accused of having some link with Al‑Qaeda or Al‑Qaeda-affiliated
individuals, although these accusations were not necessarily established at
trial or an essential part of the conduct underlying conviction. None of the
SAMs cases we reviewed involved the use of informants, where there was limited
or no actual communication between the defendant and the alleged terrorist
organizations.

Severe Restrictions
Imposed Through SAMs

SAMs often require the imposition of extreme physical and
social isolation. In the orders we obtained through a FOIA regarding 20 to 22
prisoners, SAMs banned at least 20 prisoners from “making statements
audible to other prisoners or sending notes” and required them to be
housed in single cells “separated as much as possible in cellblock area
from other inmates.”[642]

As we described, Oussama Kassir spent one and a half years
in pretrial isolation because under SAMs he was barred from talking with other
inmates or correctional staff.[643] He was
permitted “virtually no recreation or exercise, and [was] never allowed
to be outside or enjoy natural light or air.”[644]
He was also barred from purchasing food at the prison commissary to supplement
his limited meals, a restriction with little evident connection to national
security.[645] (SAMs orders
we reviewed typically barred prisoners from access to “any
material/objects that could be converted to dangerous objects”).

SAMs can also heighten social isolation by blocking
prisoners from receiving information about the outside world, including through
widely available books.[646] Prison
officials initially denied Ahmed Omar Abu Ali access to President Obama’s
two memoirs, Dreams from My Father and the The Audacity of Hope.[647]
SAMs prisoners can communicate with their immediate family members, but subject
to restrictions that have no evident and direct connection to the security risk
they pose: letters are limited to “3 pieces of paper, double-sided, once
per week, single recipient”; family visits require 14 days’ notice
and can include only one adult at a time.[648]

The Department of Justice, in reply to our letter, wrote
that all decisions to house prisoners in “single-cell status” were
made on a “case-by-case basis,” and that SAMs are not intended to
“routinely include complete curtailment of privileges.”[649]
The SAMs orders we obtained through FOIA do reflect that prisoners sometimes obtained
modifications regarding family visits. Yet the SAMs restrictions we reviewed
uniformly barred communication with other prisoners, raising the concern that
these restrictions were not individualized or narrowly tailored to each
defendant, at least initially.[650]

ADX “H Unit” Conditions for
Post-Conviction SAMs Prisoners

According to the Bureau of Prisons, 37 individuals under
SAMs are held at ADX Florence.[651] We
reviewed the SAMs restrictions of 18 of these prisoners about whom the
government provided documentation.

All SAMs prisoners at ADX are housed in the Special Security
Unit, also known as “H Unit.”[652]Prisoners there are held in 22- to 24-hour solitary
confinement, receiving a minimum of five hours of out-of-cell recreation a week
(half that of ADX General Population inmates).[653] They live in cells that measure 75.5 square feet, so
small that prisoners reportedly eat their meals within an arm’s length
from their toilet.[654] During recreation, inmates pace alone in an outdoor
cage, or an indoor room slightly bigger than their cell, and are barred from
speaking with other inmates.

Compounding the
isolation of solitary confinement are the SAMs bars on communication with the
outside world, through letters and phone calls. “For the most part
conditions are like those in other solitary units,” Uzair Paracha, who
was held at ADX Florence from 2003 to 2009, wrote.[655] “[B]ut every inmate there is
subjected to the SAMs, cutting prisoners off from the outside world.”[656] Paracha described “non-stop hunger
strikes” at the H Unit since 2002, when it was created, causing
“many illnesses” and “psychological issues” for
prisoners there.[657]

SAMs
and the Attorney-Client Relationship

SAMs
permit the government to monitor any and all attorney-client
communications—without first seeking court approval—if federal
law enforcement agencies have a reasonable suspicion that a defendant may use
the attorney-client communication to “further or facilitate acts of
terrorism.”[658] Monitoring is permitted “to
the extent determined to be reasonably necessary for the purpose of deterring
future acts of violence or terrorism.”[659] A “privilege team”
monitors communication but cannot disclose any information unless it gets
court approval.[660] It also cannot retain any
communications that are found to be privileged.[661] According to the Bureau of
Prisons, as of November 2013 the government was monitoring the attorney-client
communications of one prisoner in its custody.[662]

Full
confidentiality of communications between lawyers and prisoners is a key
aspect of the right to counsel under international human rights law.[663] In practice, “surveillance
cannot but have a chilling effect on the attorney-client relationship,”
a lawyer who has worked with a SAMs defendants notes.[664] “The client sharing
information with his attorney has nothing but the promise from the very
government prosecuting him that such statements will not be used against
him.”[665]

In three
cases we reviewed, attorneys complained that SAMs undermined their ability to
prepare for trial, in particular, due to delays they encountered when trying
to communicate with their clients and get information from them.[666] Jay Carney, attorney for Tarek
Mehanna, told us that Mehanna’s facility repeatedly rejected
attorney-client emails he sent to Mehanna and, in one instance, seized as
“contraband” evidence that was from the trial (see section III).[667] SAMs also impose restrictions on
attorneys themselves, leading to delays in attorneys’ communication
with potential witnesses, defense experts, investigators, paralegals, and
interpreters.[668]

Restrictions on Family Contact

Many prisoners who were convicted of terrorism or
terrorism-related offenses are denied any physical contact during visits with
their families, meaning they are only permitted to see each other through glass
or by video monitor, and speak through a telephone receiver. These include all
inmates under SAMs[669]; all
inmates at the CMUs[670]; all
inmates at ADX Florence[671]; and
some inmates held in pretrial facilities or other facilities post-conviction,
according to interviews we conducted.

This is in contrast to general Bureau of Prisons policy,
which permits “handshakes, hugs, and kisses (in good taste)” at the
beginning and end of visits.[672]
Moreover, while the Bureau of Prisons’ general policy is to provide
inmates 300 phone call minutes a month,[673]in the cases we
documented individuals frequently received far less: one 15-minute phone call
per month in pretrial detention and for inmates under SAMs; at the CMUs, two 15-minute
phone calls a week since 2009, which may be reduced to a single 15-minute phone
call per month under a proposed rule.[674] Where
imposed as a regular policy, rather than a punishment, such restrictions could
last years or even a lifetime.

Prisoners described the ban on contact visits as
exacerbating the pain of solitary confinement or other restrictive conditions. Dritan
Duka, who is serving a life sentence at ADX Florence, described the prohibition
on physical contact during visits as “the most difficult thing to deal
with”:

We all want to touch our children. You want to hug and kiss
them. You got to be patient. Otherwise you’ll break down like other
people. … If you’re not strong this place will destroy you.[675]

In a phone interview, Aref told us: “My daughter was
five years old and I have never hugged or kissed her. I never touched her
because she was born after my arrest. If I knew why—but I do not have any
reason.”[676]

Shukri Abu Baker, a defendant in the Holy Land Foundation
case, termed the CMU a “touch of hell.”[677]
In a letter, he described no-contact visits: “my children…could
see, but not touch me as though I had some sort of a contagious disease that
the government wanted to protect them from.”[678]
He also described trying to call his hospitalized and terminally ill daughter after
having exhausted his allowance of two 15-minute phone calls and a single
“compassion” call:

I would panic thinking she was dying on me….The most
dreadful thought I had was that she is gone before could [s]ay goodbye. The CMU
has some good compassionate men who tried to help me but their hands were tied
up because it was the Counter Terrorism Unit in the [Bureau of Prisons] that
managed my communications….all I wanted was to be able to hear the voices
of my loved ones and be heard.[679]

As Representative Sheila Jackson Lee emphasized in a 2010
letter to the Bureau of Prisons regarding CMU inmates: “the ways in which
prisoners are prevented from maintaining family ties has the possibility to
rise to cruel punishment, and serves no legitimate purpose.”[680]

Because international terrorism inmates are frequently held
at facilities that are hundreds of miles from their families, many of the
families we spoke to reported they were only able to visit once or twice a
year. This is in contrast to most prisoners’ placements, as the Bureau of
Prisons’ general policy is to place prisoners within a 500-mile radius of
their release residence.[681]

The government’s stated purpose for imposing these family
contact restrictions is to ensure complete audio monitoring of inmate
communications and detect terrorist or criminal activity.[682]
Yet in practice the outcomes raised human rights concerns by escalating the
degree of social isolation beyond what is necessary.

Nor are these restrictions necessary to address concerns
about prisoner radicalization expressed by Congress or the Department of
Justice.[683] Even assuming that complete
monitoring of inmate communications is a necessary and legitimate goal, the Bureau
of Prisons could meet it by designing contact visitation rooms that permit
audio monitoring, and increasing the resources it devotes to monitoring to
permit more frequent and longer inmate phone calls.

Obstacles to Challenging Prisoner Classification
and Seeking Transfer to Less Restrictive Facilities

Individuals whose cases we reviewed frequently voiced a
sense of helplessness and bewilderment at their indefinite social isolation,
restrictions on their communication with family, and other conditions. We spoke
to many prisoners who had searched the labyrinth of prison administration for
answers about the decision to impose certain restrictions on them and their recourse.
They were repeatedly blocked by prison officials at multiple levels.

Challenging “Terrorism” Designations

Designation as an “international terrorist” and
“domestic terrorist” can result in prisoners’ placement in
special units, solitary confinement, and deprivation of contact visits,
communication, and other privileges. Yet the Bureau of Prisons’ own
policies and statements about terrorism designations are opaque and at times
conflicting.[684] A
search of Bureau of Prisons manuals and directives yielded little information
about terrorism designations—leaving prisoners and their families with
minimal access to an explanation of how to challenge designation decisions and
treatment.[685]

Only due to our Freedom of Information Act request and
following a court order did the Department of Justice confirm the existence of
“an assignment system that identifies inmates with a nexus to
terrorism”—based not just on their convictions, conduct and
affiliations established at trial or while in prison, but an array of
“open source information, intelligence provided by other law enforcement
agencies, [and] other information subject to validation.”[686]
The government did not describe any process for challenging the validity of
information derived from these sources.[687] Nor is
it clear that the Bureau of Prison’s designation review processes
available to prisoners under other Security Threat Group assignments (e.g. for
alleged gang affiliations) are available to prisoners designated as
“terrorists.” To the extent prisoners are placed in solitary
confinement and subject to other potentially abusive conditions because of
their designations as “terrorists,” failure to provide a review
process for designations raises due process concerns under international human
rights law. (US courts have generally failed to uphold similar due process
claims.)

In some cases we reviewed, the taint of terrorism subjected
prisoners to harsh measures that did not appear to plausibly relate to any
potential threat the prisoner poses. For example, Sabri Benkahla is a US
citizen who was acquitted of providing material support for terrorism but later
convicted of making false statements to a grand jury and the FBI (see above).
The district judge in the case was unequivocal that “Sabri Benkahla is
not a terrorist” and found that Benkahla’s false statements were
not based on intent to promote a terrorist activity but “out of a desire
not to be seen as involved with illegal activities.”[688]
Although Benkahla received a terrorism enhancement (see section V) to his
sentence, the judge concluded: “His likelihood of ever committing another
crime is infinitesimal.”[689]
Benkahla was classified as a minimum security prisoner and had never been
charged with a disciplinary violation when, in October 2007, he was sent to a
CMU. There, he was denied any contact visits from his family and permitted only
one 15-minute phone call per week.[690]
The American Civil Liberties Union filed a lawsuit challenging his confinement
in the CMU in June 2009, and he was transferred out of it in July 2010.

The Bureau of Prisons has sometimes transferred prisoners to
less restrictive conditions over time, suggesting that the “terrorist
inmate” designation does not prevent all individualized inquiry and
review. Indeed, we found that nearly a quarter of prisoners convicted of
terrorism or terrorism-related offenses were held in low-security prisons, as
of July 2013.[691]
However, in the cases we reviewed, prisoners transferred to lower-security
prisons did not know the reasons for the transfer, and feared being returned to
more restrictive conditions.

Transferring Out of ADX

After 9/11, the Bureau of Prisons transferred several Muslim
men convicted of terrorism-related offenses from less restrictive prisons to
solitary confinement at ADX, although they did not have significant
disciplinary histories or any involvement in the 9/11 attacks.[692]
The Bureau of Prisons later changed its policies to permit prisoners to be sent
to ADX if they were “convicted of, charged with, associated with, or in
any way linked to terrorist activities and as a result of such, presents
national security management concerns.”[693]

As Human Rights Watch has previously reported, prisoners
transferred to ADX based on their convictions and alleged past conduct, rather
than their disciplinary history, exist in a bleak limbo.[694]
Even if they have no disciplinary history and are not believed to pose an
ongoing threat, prisoners may languish in solitary confinement at ADX Florence
because their placement stems from their conviction—past conduct that
they can never undo. A 2007 Human Rights Watch investigation found that in a
number of cases, the good conduct of prisoners had been acknowledged, yet they
were denied transfer to less restrictive conditions because the “reason
for placement at the ADX has not been sufficiently mitigated.”[695]

ADX has a four-phase “Step Down” program through
which inmates can receive incrementally greater privileges of communicating
with other inmates, greater phone privileges, and eventual transfer out of the
prison.[696]
However, ADX prisoners must spend at least three years at the prison to
progress out of ADX, and transfer remains rare.[697]

In 2009, an updated Bureau of Prisons manual set out a
six-month review process for ADX prisoners conducted by the Step Down Screening
Committee, charged with deciding whether a prisoner can advance through the
Step Down process. The manual describes clear disciplinary records and
completion of educational programs as factors weighing in favor of successful
progress.[698]
Nonetheless, the Bureau of Prisons may keep a prisoner at ADX if his
“original reason for placement still exists,” in other words, it
appears that a prisoner could remain stuck in ADX due to his conviction, and
regardless of his good behavior, if that was the basis of his placement.[699]

Transferring out of CMUs

Unlike other similarly situated Bureau of Prisons inmates,[700]
prisoners are designated for a CMU and transferred there without prior notice
or pre-transfer opportunity to contest their placement. Instead, within five
days of transfer to a CMU, an inmate receives a “Notice of Transfer to
Communications Management Unit.” Our review of these notices from several
cases suggests they do not describe specific acts or evidence underlying a
designation that would permit a prisoner to challenge them.[701]
In some cases, the notices state that “reliable evidence” indicates
the prisoner has been involved in “radicalization efforts,” but we
are aware of no notices that describe the evidence.[702]
The Bureau of Prisons is not required to document or substantiate CMU
designations.[703]
Decisions to place prisoners at the CMUs appear to bypass the Bureau of Prisons’
general designation and placement system, which by statute must include
consideration of factors including the sentencing court’s statements.[704]

According to the Bureau of Prisons, as of October 2013, 45
individuals have been released or transferred from the CMUs based on a Step Down
process, but it was unpredictable and ineffective in some cases.[705]
Indeed, of the nearly 100 CMU detainees, the Bureau of Prisons said only four
were currently in the Step Down process.[706] Whereas
the Bureau of Prisons requires review of prisoners’ placement at control
units every 30 days, there is no required Bureau of Prisons review of CMU
prisoners’ ongoing placement.[707] In
October 2009, the Bureau of Prisons issued a memo requiring staff to review CMU
prisoners’ designation every six months. But this process does not
provide prisoners the opportunity to address specific allegations or evidence,
as is possible in the reviews for control unit prisoners.[708]

Mohamed Shnewer, a defendant in the Fort Dix case, said he
had been imprisoned at Marion CMU for four years. In an email, he described the
review process:

I asked how can I get out of here, I was told when my “crime”
I was convicted [of] changes. It’s the same every time, there is never a
discussion, this “review” usually takes less than two minutes. I
sign a few places, take the papers they have ready for me, then leave the room.[709]

Defense lawyers who have visited the Marion CMU told us that
the men they met had no disciplinary histories, and their continued placement
at the CMU was based on their terrorism convictions. “That is only done
for terrorism cases, everyone else is classified according to what they do in
the prison system,” a defense lawyer explained.[710]
“The effect of that means they can never change their security
classification, because their underlying crime will remain the same—so no
matter how they behave, they’re forever stuck.”[711]

Some CMU prisoners have filed administrative appeals, in a
process that applies Bureau of Prisons-wide.[712] Nongovernmental
organizations (NGOs) and advocates with whom we spoke said that no one’s
placement in a CMU has ever been reversed through the administrative appeals
process.[713] The Bureau of Prisons did not reply to our letter requesting information about the process,
although they released statistics pursuant to our FOIA.[714]

Challenging SAMs

Under post-9/11 rules, the timeframe for imposing SAMs was
extended from 120 days to one year;[715]
renewal of SAMs became contingent on certification that “based on the
information available” the SAMs were still necessary, rather than, as
previously required, that “the circumstances identified in the original
certification continued to exist.”[716]

The government contends that “[i]nmates under SAMs are
afforded due process.”[717]
Indeed, there are signs that the government is willing to modify and remove
SAMs over time: a significant proportion of the overall number of
post-conviction prisoners under SAMs has been transferred out of ADX
Florence—11, as of January 14, 2011.[718] We are
aware that at least some prisoners have been able to secure modification of
their SAMs without pursuing an administrative remedy.

But prisoners are not given a hearing where they can contest
the initial imposition of SAMs.[719] Nor do
they have adequate notice of the process for securing SAMs modification and
removal, nor of the conduct that will make modification and removal more
likely.

After SAMs are imposed, inmates can, in theory, challenge
the restrictions through the Bureau of Prisons’ Administrative Remedy
Program,[720] or
they can seek modification of their SAMs by making a request to a Bureau of
Prisons staff member[721] or
during a six-month Bureau of Prisons review.[722] But
the Bureau of Prisons has argued in litigation that it in fact has “no
authority to remove or amend any restrictions imposed” through SAMs.[723] One prisoner formerly held in solitary confinement under
SAMs said: “The wardens of ADX used to tell us that there is nothing that
they can do to improve our conditions as long as the SAMs is in place. That’s
why the inmates in ADX were in an endless hunger strike,” he wrote.
“[T]here is no way for them out except if SAMs is removed, and that is in
the hands of the [Attorney General].”[724]

There is also an annual renewal
process for each prisoner’s SAMs. Prisoners have long had the opportunity
to provide written comments regarding SAMs renewal. In August 2010, the Bureau
of Prisons established a process including an in-person
meeting for ADX inmates under SAMs, which includes the prisoner, ADX personnel
and the FBI case agent assigned to the prisoner’s case.[725]
But the prisoner does not have an opportunity to address the specific
allegations of the US Attorney’s office requesting SAMs renewal.
Prisoners are ordinarily not given an explanation of why their SAMs are being
renewed that is detailed enough for them to meaningfully contest.[726]
Instead, they simply receive a boilerplate letter stating their SAMs are being
renewed because they “continue to show a proclivity for violence.”[727]

Under a
three-stage Step Down program (distinct from the regular ADX program), SAMs
prisoners at ADX Florence can gain incrementally more out-of-cell time and
phone privileges.[728] We were only able to discern the
parameters of this Step Down process by reviewing the government’s
responses in litigation; however, no attorneys we spoke with were able to
confirm how the process works in practice—either because they were
unaware of it, or because they believed the terms of their SAMs precluded them
speaking about the process.[729]

Ahmed
Abu Ali—Serving Life in the “H” Unit

Ahmed Abu
Ali is currently serving a life sentence in ADX’s “H Unit.”
He was convicted largely on the basis of a confession, which he says was
false and extracted by Saudi officials who tortured him (see section IV). Abu
Ali’s SAMs were apparently modified to permit him less restrictive
conditions over time: while Abu Ali was previously in 23-hour lockdown with
an hour of indoor exercise, he is now permitted at least two hours of
interaction with other inmates a day, and an hour and a half of outdoor
recreation. Still, his attorney told us they were not notified of the SAMs
modification and that the Step Down process was unclear, making the duration
of these ameliorated conditions—and the potential that Abu Ali could be
put back in 23-hour isolation—unknown. “I have no understanding
of what that process is,” the attorney told us. “There’s no
handout or handbook. There’s nothing that I can point to, to say,
‘This is how you can step down in the future.’ There’s no
clear guidance.”[730]

The Convention against Torture requires governments to
systematically review arrangements for the custody and treatment of persons
subjected to any form of confinement with a view to ensuring there is no
inhuman or degrading treatment.[731]

Limited opportunities to contest conditions of confinement,
including transfer into special units where prisoners are subject to solitary
confinement or restrictions on their communication, raise concerns under the
convention. In units that hold prisoners designated as “terrorists,”
internal review systems too often fail to provide an effective check on
unnecessary or prolonged solitary confinement or other restrictive conditions.

This is compounded by the fact that US law imposes unfair
limitations on US prisoners’ ability to seek redress through litigation
for abuse and dangerous conditions of confinement.[732]

VII. Law Enforcement Relations with American Muslim
Communities

Since the 9/11 attacks, successive US administrations have
said that they are seeking to build relationships with American Muslim
community leaders and groups, as they are critical sources of information to
prevent terrorist plots. They have also said that they seek to help build
American Muslim communities’ sense of cohesion and trust in law
enforcement, to counter violent extremism. Many of the policies and practices
we have described in this report, however, run counter to these purported goals:
in some communities, they have generated fear of interacting with law
enforcement.

Community Outreach and Countering
Violent Extremism

“If the public understands the FBI’s mission and
views the FBI as cooperative and trustworthy, they are more likely to report a
crime, return a telephone call or respond positively to being approached by an
FBI agent,” FBI official Brett Hovington told Congress in March 2010, in
explaining the FBI’s outreach with American Muslim communities.[733] The FBI and other parts of the Justice Department
have promoted this vision of community-law enforcement partnerships by, for
example, creating local advisory boards and meeting with local community
groups.[734]

This vision was in some ways expanded with the White
House’s adoption in August 2011 of a strategy paper on “Countering
Violent Extremism” (CVE).[735] The
stated goal of CVE is to “support and help empower American communities
and their local partners in their grassroots efforts to prevent violent
extremism,” including by “strengthening cooperation with local law
enforcement.”[736] The
Department of Homeland Security and DOJ were tasked with cultivating strong
relationships with American Muslim communities throughout the country through
community roundtables and presentations.[737]

The White House’s December 2011 “Strategic
Implementation Plan” suggests that communities’ sense of cohesion
and trust in law enforcement is critical to countering violent extremism:

Violent extremist narratives espouse a rigid division
between “us” and “them”... Activities that reinforce
our shared sense of belonging and productive interactions between government
and the people undercut this narrative and emphasize through our actions that
we are all part of the social fabric of America. As President Obama emphasized,
when discussing Muslim Americans in the context of Al-Qaeda’s attempts to
divide us, “we don’t differentiate between them and us.
It’s just us.”[738]

Fears of Surveillance and Targeting in American
Muslim Communities

Despite this rhetorical commitment against stigmatizing
American Muslim communities, many of the investigatory and prosecution
practices described in this report undermine the vision and goals of “Countering
Violent Extremism” and community outreach by generating a fear among
communities that law enforcement views them with generalized suspicion and is
monitoring their ordinary behavior.[739]

“This community is under siege,” said Tom
Nelson, an attorney with several clients in Portland, Oregon’s American
Muslim community. “And even if they’re not under siege, they think
they are.”[740] In Dallas,
Texas, Khalil Meek of the Muslim Legal Foundation Association said, “the
community has an absolutely healthy feeling that everything it does is
monitored.”[741]

We visited seven mosques around the country. At some
mosques, congregants were initially suspicious of us and appeared alarmed by
any mention of terrorism or law enforcement. Some mosque leaders told us that their
communities had not been impacted by high-profile prosecutions and that they
maintained cordial and frank relationships with law enforcement. Yet, in many
mosques, we repeatedly heard suspicions of surveillance. Some of these accounts
would have smacked of exaggerated suspicion were it not for the undeniable
reality of government surveillance policies.

Many mosque congregants described what they believed were
signs of surveillance by local law enforcement or the FBI: unmarked cars parked
outside of the mosque, unknown individuals writing down license plate numbers
of cars parked at the mosque, or even showing up to hear Friday sermons and
introducing themselves to other congregants and offering to help with jobs,
loans or charity work.

Many people told us they believed that informants were
eavesdropping on their conversations. Some expressed fear that informants were
targeting Muslim youth—encouraging them to split off from the main
congregation, form their own groups and detach themselves from mosque elders
and leaders.[742]
Advocates who work with Muslim communities told us that the fear of informants
posing as fellow Muslims was damaging communities’ sense of safety and
internal cohesion. The fear exists for everyone, from mosque leaders “to
people who just go to Friday prayer,” said Mohamed Sabur, an attorney at
the organization Muslim Advocates who regularly speaks with mosque and
community leaders in California and the Pacific Northwest region. “[W]hether
it’s people approaching other people in mosques, or in gyms, or
elsewhere…[it] leaves no space in the Muslim community where there is
trust.”[743]

Investigations and prosecutions involving local religious
leaders have had a chilling effect on some communities we visited. For example,
at Masjid as-Salam in Albany, New York, the FBI raided the mosque in connection
with the investigation of its imam, Yassin Aref (see section II). After the
raid, there was “a tremendous amount of fear and anger from the Muslim
community,” said mosque president, Dr. Shamshad Ahmad. There was a
perception that the government was coming after “religious, simple minded
people, and [people] thought that this was a blanket movement so people became
scared.”[744]

Damage to American Muslim Community Institutions

The US government
says it considers mainstream American Muslim community institutions to be natural
bulwarks against violent extremist ideology, and says it aims to strengthen
them.[745] Yet, in some communities, the
government’s counterterrorism practices are driving people away from
mosques and other community spaces.[746]

Many individuals described a generalized anxiety and a fear
that they put themselves at risk of law enforcement surveillance and targeting
whenever they engaged with Muslim and community institutions, for example, by
attending mosque, contributing to charity organizations, volunteering or
helping organize community events. They reported that this fear had, during
some periods, driven them or their acquaintances to avoid expressing political
opinions or engaging in basic religious practices such as group prayer.
(However, other community members said that mosque attendance was not
significantly affected by possible surveillance or other practices.)[747]

Some community members said that fears of surveillance and
informant infiltration had negatively transformed the quality of the
mosque—from a place of spiritual sanctuary and community togetherness to
a place where they had to be on their guard, watch what they said, with whom
they spoke, and even how often they attended services.[748]

Muslim Advocates attorney Sabur meets regularly with Muslim
communities across the country. He told us that American Muslims are more
reluctant than ever to give to charity. “Eleven years after 9/11, things
are engrained in the community. Some people go to the extent to not give to any
Muslim cause. They don’t want to risk being scrutinized after the fact.
After all, $150 million to one organization led to a 20-year
investigation.”[749]
(Referring to the investigation of the Holy Land Foundation—see section III).

Damage to Community-Law Enforcement Trust

Some American Muslims are reluctant to engage with law
enforcement because they believe it could lead to their being arbitrarily
targeted—either to become an informant, or to be prosecuted. As a result,
they are wary of talking with law enforcement, which can have ramifications for
their willingness to report a crime or fully cooperate in bona fide terrorism
investigations.

American Muslims are most likely to engage with the FBI in
two settings: in FBI “voluntary interviews” (visits to their homes,
schools, and places of work) or in their own cultural or religious spaces. FBI
agents have in some cases presented their attendance at mosque or cultural
events, or their visits to individuals’ homes and schools, as
“community outreach”—friendly and casual—but instead
collected intelligence on the behaviors of law-abiding American Muslim
individuals and communities.[750] This
runs counter to the FBI’s own policy of separating investigation work
from community outreach.[751] It has
the effect of tainting all FBI community partnership efforts as insincere, and
fuels the perception that the FBI views all American Muslims as inherently
suspect.[752] It
also drives speculation within communities that the FBI is taking advantage of
their willingness to engage to perform clandestine investigations and
ultimately build prosecutions against vulnerable community members.

Perhaps most damaging to community-law enforcement trust is
that in parts of the country the FBI has pressured law-abiding individuals to
become informants within their own communities—that is, to provide
information on friends and community members. While there is no recent and
large-scale study of these incidents, some American Muslims have described them
as involving intimidation and harassment.

For example, the Minnesota chapter of the Council on
American-Islamic Relations (CAIR) told us that since May 2012, it has received
as many as three complaints each week from individuals the FBI allegedly approached
to act as informants, typically in the Somali-American community. Saly M. Abd
Alla, civil rights director at CAIR-Minnesota, recalled a recent case in which
the FBI approached a 17-year-old student and offered to get him a “nice
smartphone.”[753] Abd
Alla added that in some cases, the FBI uses coercive tactics to get informants,
for example, by threatening to stall their asylum application.

Journalists, local NGOs and national advocacy groups have
also reported numerous cases where the FBI used pending immigration-related
applications, immigration violations or placement on a “no-fly”
list as leverage to pressure individuals to become informants.[754]
Some advocates have raised concerns that the FBI is particularly targeting
youth to become informants.[755] Such
tactics are not unique to the terrorism context, and are a long-standing
practice in drug cases involving immigrant communities.[756]
The FBI has denied these allegations, arguing that it is prohibited from using
threats or coercion.[757] Some
reports suggest the FBI does not use direct threats, but retaliates against
individuals who refuse to become informants.[758]

Grand jury investigations, which can have consequences that
reach far beyond the individuals who are ultimately indicted, have also
contributed to mistrust. For example, some of the mistrust in the Muslim
community in Minnesota stems from a lengthy grand jury investigation into
several Somali-American youth believed to have traveled to Somalia to fight
with Al-Shabaab, a Somali militant group with ties to Al-Qaeda.[759]
The case against Amina Ali and Hawa Hassan (see section IV) stemmed in part
from that grand jury investigation.

The Holy Land Foundation caseincluded a list of 245 unindicted co-conspirators,
including mainstream Muslim organizations such as CAIR.[760] Although the list of unindicted co-conspirators was
confidential, it was leaked to the public.[761] The naming of the co-conspirators had wide-ranging
consequences. The FBI, which previously worked closely with CAIR, dropped its
formal association.[762]

In this context of distrust, some members of communities may
view leaders and others who cooperate with the FBI as disconnected from their
concerns. Ashraf Nubani, a Muslim lawyer based in Virginia who often speaks to
national Muslim audiences at religious and cultural meetings across the
country, said some community members might see Muslim leaders “hosting
Iftar dinners” with government guests as “Uncle Toms” when
the FBI later holds up the arrest of a teenager as “catching a big
terrorist.”[763]

In the worst cases, communities come to view Muslim leaders
who cooperate with the FBI as unable or unwilling to protect them.[764]
Sahar Aziz, a former civil rights advisor at DHS, warned that government use of
community outreach to gather intelligence about Muslim communities, among other
factors, is driving genuine leaders away, leaving the government to engage with
“purported leaders of no repute within the communities and willing to
tell the government whatever it wants to hear.”[765]

Necessary Alternatives

Many community members and advocates—including some
who maintained close, cooperative relationships with local law enforcement and
FBI field offices—told us they were bewildered at the government’s
choice to use surveillance and informants in mosques to track a community
member believed to pose a terrorist threat, instead of approaching community leaders
about it.

They questioned the government’s devotion of resources
to investigation and prosecution, instead of to supporting community and
religious institutions to detect and address pathways to crime, for example,
through funding counseling and social services.

Some community advocates expressed frustration at the lack
of government investment in community support. A few weeks after the government
indicted 19-year-old Adel Daoud, who had been a student at a local Islamic
school when undercover FBI agents began communicating online with him about
planning a terrorist attack, we spoke with a Muslim community-based advocate in
Chicago: “These kids don’t wake up one day and decide
‘I’m going to blow society up,’” she said, pointing out
that they may have problems and start exploring extremist websites, just as
they might turn to drugs. The advocate told us she had approached various
government agencies about funding for social services. “You cannot direct
your attacks and assaults on this community and not invest in infrastructure
for this community.”[766]

Corey Saylor of CAIR echoed calls for a counseling- and
social service-based approach:

Many of these kids are salvageable when they first come to
the attention of law enforcement. We could send an imam in and snap the kid
back straight. That would be better than an informant walking him down the
path, providing the means. I have no sympathy for someone who thinks they're
pushing the button. But it never should have gotten there. Intervention can
work. There are examples. When they’re introduced to a mentor, a friend
who has influence, instead of surfing around on the Internet—instead of
violent extremists and undercover law enforcement. Some of these kids can be
saved.[767]

There are significant reasons to be cautious about involving
law enforcement in such interventions.[768] Yet
the FBI’s activities cut off any possibility of such an approach and
contribute to a climate of fear, undermining the efforts of other federal
agencies that engage with American Muslim communities.

The UK’s Channel program involves local government
authorities, community members and organizations from the education sector,
social services, and children’s and youth services, for social
services-based interventions to identify and prevent “extremism.”
It was established in 2007 as part of a larger program to prevent “radicalization”
and “extremism” among UK Muslims.[769]
It has significant problems, including troubling reports that the UK has used
these programs to gather intelligence from community organizations, effectively
making the programs a “cover” for surveillance.[770]
Yet Channel also illustrates the potential for community support as an
alternative to prosecutions.[771] Individuals
who are referred to the Channel program are not prosecuted. The program has
received about 2,500 cases since it was established.[772]

In the US, there are at least a handful of cases where the government
adopted a “soft intervention” approach and referred individuals to
local community partners.[773] These
past cases also show the feasibility of alternatives to abusive investigation
and prosecutions. Yet any approach that involves the FBI and targets
individuals based on their religious beliefs or political opinions raises
serious concerns about respect for the freedom of expression.[774]
Rights-respecting interventions could be community-driven and based on
community institutions such as mosques and schools.

While federal officials increasingly recognize the
importance of developing such alternatives, the reality is that
counterterrorism efforts, including surveillance and the use of informants,
cause such significant harm to community-law enforcement trust that they may
understandably deter communities from accepting any government support. Mosque
and community leaders may also be reluctant to engage with youth and other
members they identify as at risk of committing a crime, out of fear that they
will be tainted by association and come under government scrutiny themselves.
This underscores that the success of CVE depends in large part on the
government limiting the use of informants and undercover agents and ending
overbroad material support prosecutions.

In addition, the government should recognize that focusing
CVE on American Muslim communities is stigmatizing and unwarranted. Indeed,
various ideologies and social dynamics—not only Al‑Qaeda inspired
extremism—have resulted in domestic terrorism in recent years.[775]
As a former US official explained, the current approach “risks
perpetuating the ‘us-versus-them’ dichotomy that the White House is
trying to overcome,” because the subtext is, “You Muslims are a
potential threat and we, the government have to co-opt you.”[776]

The government should not “try to make officers into
religious experts or narrow their sensory field by focusing them on only one of
dozens of strains of terrorism they might encounter.”[777]

Ultimately, the best approach to terrorism prevention may be
to have a truly community-driven approach that focuses on addressing a wide
array of threats, rather than merely one possibility.[778]

VIII. Full Recommendations

To the US President

Urge the attorney general, Department of
Justice, and Bureau of Prisons to reform investigative, trial and detention
practices.

Ensure UN special rapporteurs have full
access to facilities and prisoners to ensure compliance with international
human rights standards.

Direct reform of “Countering Violent
Extremism” and Community Outreach programs.

Direct all federal agencies to ensure that activity conducted as
“community outreach” or under the auspices of “countering
violent extremism” (CVE) is not being used for intelligence purposes and
that these programs are not exploited for intelligence collection.

Direct all federal agencies to ensure that counterterrorism and
CVE programs are based on sound academic and empirical research methods, rather
than discredited “radicalization” theories.

Direct federal agencies to support community-driven and
rights-respecting programs as an alternative to the use of informants and
abusive investigations.

Support social service providers and community organizations
that develop programs based on needs they have identified.

Do not base referrals for soft intervention on religious
behavior, political opinion, or other activity protected by the right to
freedom of expression under international law.

Reconceptualize CVE to focus on domestic terrorism of all
ideological forms.

To the US Attorney
General

clearly establish that decisions to initiate assessments,
preliminary investigations, or investigations may not be made on the basis of
religious behavior, political opinion, or other activity protected by the right
to freedom of expression under international law;

prohibit the recruiting and tasking of informants in assessment
and preliminary investigation phases, as under previous versions of the
guidelines;

permit the FBI to initiate a full investigation only if it is supported
by articulable facts giving rise to a reasonable indication that a violation of
federal law may occur, as required under previous versions of the guidelines.

With minimal redactions to protect legitimately secret
information, declassify and make public key portions of the FBI’s
Confidential Human Source Validation Standards Manual, in order to allow more robust
public oversight of informant conduct and approval procedures.

Permit challenges to material support
charges: Permit individuals charged with material support under 18 USC
§ 2339B to challenge the underlying designation of the Foreign Terrorist
Organization.

Establish procedures enabling prisoners and their lawyers to
directly challenge the imposition and renewal of SAMs, including resulting
conditions such as solitary confinement, through a pre-deprivation hearing that
includes opportunity to review evidence justifying SAMs, submit rebuttal
evidence and provide witness testimony.

Change the standard time for imposition of SAMs from one year to
120 days, as under previous versions of the regulation.

Limit Monitoring of Attorney-Client Communications. Rescind the
regulation that directs the Bureau of Prisons to facilitate the monitoring or
review of communications between detainees and attorneys.

To the Federal
Bureau of Investigation

Ensure that decisions to initiate
assessments, preliminary investigations or investigations are not made on the
basis of religious behavior, political opinion, or other activity protected by
the right to freedom of expression under international law.

Revise the Domestic Investigations
Operations Guide (DIOG) to prohibit the recruiting and tasking of informants in
assessment and preliminary investigation phases.

Declassify and make public key portions of
the DIOG detailing guidance provided to FBI agents for initiating monitoring of
religious and political institutions.

Report to congressional committees on the
deployment of informants into community or religious spaces, including the
number of informants and the scope of their activities.

Ensure that information obtained through
community outreach is not used for intelligence purposes, in accordance with
existing FBI policy.

Ensure that law enforcement agents do not
use threats, including those involving the “no-fly” list, when
recruiting informants.

To the Department of Justice National Security
Division and US Attorneys’ Offices

Reform material support charging practices.

When charging under the material support statutes, 18 USC §
2339A and B:

do not charge individuals or groups for providing material
support based on activity protected by the right to freedom of expression under
international law;

charge only individuals or groups who intended to further
unlawful activity.

Reform trial practices.

Review standards for introduction of evidence about terrorism
that is not directly linked to defendants’ conduct to ensure such
evidence is not overly prejudicial.

Request anonymity of lay witnesses only to protect the witness
from physical harm.

Request anonymity of law enforcement witnesses only in rare circumstances
when absolutely necessary to protect ongoing investigations. Ensure defense
receives adequate information to compensate for anonymity and permit thorough
cross-examination of anonymous witnesses.

Where possible, only use as expert witnesses individuals whose
identity and background can be made public.

Ensure expert witnesses have particular expertise in the precise
matter at issue in each case.

Reform sentencing: Adopt standards to
restrict the seeking of the terrorism adjustment, particularly for cases where
defendants did not intend physical harm to persons to result from their
activities.

Restrict use of Special Administrative
Measures (SAMs).

In orders imposing SAMs, provide specific justifications for
imposing severe restrictions, e.g., bars on communication with other inmates or
on receipt of information, and ensure that restrictions are proportionate to
the particular dangers or threats identified.

During the SAMs renewal process, provide prisoners and their
lawyers the opportunity to directly petition the prosecuting US
Attorney’s Office that makes the renewal request.

Limit orders to monitor attorney-client communications to the
cases in which no other means are available to protect against serious threats
to national security, particularly for pretrial prisoners, and require court
authorization and notification to defense counsel.

Cease use of evidence obtained without
warrant or court order: Do not seek to introduce evidence against defendants in
criminal cases derived from warrantless surveillance conducted under section
702 of the FISA Amendments Act.

To the Bureau of
Prisons

End prolonged solitary confinement: Prohibit
all prolonged solitary confinement and indefinite solitary confinement. Where
solitary confinement is used, ensure its duration is as short as possible and
for a definite term, with notice to prisoners. Ensure periodic, individualized
review of prisoners’ placement in solitary confinement and provide
prisoners a meaningful opportunity to challenge the specific justifications and
evidence underlying their placement.

Permit challenges to terrorism designations:
Provide notice to prisoners of their designation as “terrorist”
prisoners—whether domestic or international—and an opportunity to
challenge the designation and related restriction or conditions of confinement.

Improve conditions in detention.

Ensure that all prison facilities comply with Bureau of Prison regulations
regarding minimum amount of time in recreation and that prisoners in pretrial
detention are promptly notified of their rights.

End policies that prohibit all contact visits for prisoners
convicted of terrorism offenses or who are otherwise deemed to have terrorist
ties. Consistent
with the Bureau of Prisons’ general policy recognizing the importance of the visitation
for rehabilitation, permit contact visits unless evidence establishes a
specific security risk with regard to communication or contact with particular
individuals. For inmates for whom there are specific security risks, design
contact visitation rooms that permit audio and visual monitoring.

Increase phone call allowances for prisoners whose communication the Bureau of
Prisons monitors, including prisoners under SAMs
and at CMUs, to levels matching other prisoners under their security
classification.

Ensure humane prison conditions, including adequate lighting,
heating and cooling, and ventilation, including at the CMUs and in pretrial
detention Special Housing Units.

Investigate allegations of harassment, intimidation, and
retaliation against Muslim and Arab prisoners.

Ensure all prisoners are given adequate accommodations for
religious practices, including the opportunity for group prayer for any
prisoners for whom it is a religious requirement.

Permit prisoners to challenge their CMU designation through a
hearing and review process, for example similar to the process afforded to
prisoners placed in a control unit, including a live hearing, advance notice of
charges and the acts or evidence at issue, and the right to call witnesses and
present documentary evidence.

Provide due process protections for prisoners prior to CMU
designation, including meaningful notice of all reasons for CMU placement, and
a hearing.

Ensure meaningful and periodic review of CMU placement every 6
months and provide clear criteria for gaining transfer out of the CMU.

Ensure the right to an effective defense.

Do not impose pretrial solitary confinement based solely on the
severity of the offenses charged; ensure any imposition of pretrial solitary is
imposed under meaningful judicial supervision, including of the impact on the
defendant’s ability to participate in preparation of a defense.

Do not unduly delay or arbitrarily block letters, visits and
other forms of communication between prisoners and their lawyers.

Reform Special Administrative Measures: In
carrying out SAMs orders, apply the least restrictive conditions of confinement
for prisoners and do not impose solitary confinement if reasonable alternatives
are available. Provide prisoners meaningful opportunity to challenge conditions
of confinement imposed due to SAMs, including prohibitions of contact
visitations and receipt information.

Notify prisoners of the specific evidence and factual
allegations justifying their placement at ADX Florence and provide detailed
guidance on the Step Down program to prisoners and their lawyers.

Ensure that prisoners with clear disciplinary records and good
behavior have meaningful opportunity to progress through the Step Down program
and be placed in less restrictive conditions, and do not base placement
decisions exclusively on such prisoners’ criminal convictions.

Allow prisoners who will not become eligible for Step Down for
several years, but who have good behavioral history and who do not pose a
specific threat to staff or other prisoners, the opportunity to have group
meals, group recreation, group prayer, and group therapy so as to alleviate the
most psychologically damaging and punitive aspect of placement at the ADX.

To the Department of
Justice Office of Inspector General

Review the use of informants in
terrorism-related cases, including the FBI’s oversight, the effectiveness
of the rules under the Attorney General's Guidelines Regarding the FBI’s
Use of Confidential Human Sources and the FBI Domestic Investigations and
Operations Guide, and the impact of national security exceptions.

Review the impact of the most recent
revisions to the Attorney General’s Guidelines for Domestic Intelligence
Operations, including its use of assessments and investigative techniques that
were not previously authorized, on FBI investigation practices, FBI-community
relations, and respect for freedom of expression and association rights in
American Muslim communities.

Review the conditions and restriction of
privileges for prisoners charged or convicted of terrorism or terrorism-related
offenses.

To the US Sentencing Commission

Conduct a study assessing whether the
current system of sentence enhancements for terrorism is furthering appropriate
criminal justice goals and is well-tailored to best meet those goals.

Revise the Sentencing Guidelines’
terrorism adjustment to apply only to federal crimes of terrorism, as defined
in 18 U.S.C. 2332b(g), rather than any offense that “involved, or was
intended to promote” such a crime.

To Federal Court Judges

Evidence and Witnesses:

In weighing the probative value of evidence against its
potential prejudicial effects, take into account the context of heightened fear
about terrorism.

Permit fact witnesses to testify anonymously only in cases where
their personal safety may be at risk by public disclosure of their identities.

If it is necessary for an expert witness to testify
anonymously—and no similarly qualified expert is available—ensure
adequate measures are taken to permit the defense to effectively challenge
their qualifications.

Seek to provide specific recourse in
judicial orders, ensuring that defendants under SAMs or otherwise held in
Special Housing Units maintain adequate access to counsel in order to properly
prepare their defense, in line with international human rights law standards.

Ensure that sentencing decisions reflect the
goal of rehabilitation.

Do not impose terrorism adjustments on the
basis of unproven conduct; use judicial discretion to depart from the US
Sentencing Guidelines where an individual was not convicted of committing a
violent offense.

To the US Congress

Investigations:

Request that the Office of the Inspector General of the Justice
Department review the impact of the most recent revisions to the Attorney General’s
Guidelines for Domestic Intelligence Operations on the FBI’s practices,
including its use of assessments and investigative techniques that were not
previously authorized.

Hold hearings and conduct robust oversight of the FBI’s
activities, particularly with regard to the recruitment and tasking of
informants.

Amend the material support statutes, 18 USC § 2339A and
§ 2339B, to:

Include a requirement for proof of specific intent to further
unlawful activity before imposing criminal liability.

Remove or clarify overbroad and impermissibly vague language in
material support statute, including “training,”
“service,” and “expert advice and assistance.”

Detention: Enact legislation requiring the
Bureau of Prisons and all federal agencies that operate or contract for prisons
to prohibit prolonged solitary confinement and indefinite solitary confinement.

Request that the Government Accountability
Office review the Bureau of Prison’s treatment of prisoners under Special
Administrative Measures and in Communication Management Units, including the
use of solitary confinement and prohibition on contact visits.

Sentencing: Enact legislation directing the
US Sentencing Commission to amend the Sentencing Guidelines to modify the
adjustment so that it does not artificially raise the defendant’s
criminal history level to the highest level.

Trials: Reform FISA Amendments Act to make
clear that the Justice Department shall not introduce into as evidence in a
criminal case information obtained pursuant to collection under section 702.

Acknowledgments

This report was a
collaborative effort of Human Rights Watch and Columbia Law School’s
Human Rights Institute. The report was researched and written by Tarek Z.
Ismail, former fellow at Columbia Law School’s Human Rights Institute;
Naureen Shah, former associate director of the Counterterrorism and Human
Rights Project of Columbia Law School’s Human Rights Institute; and Andrea
Prasow, deputy Washington director at Human Rights Watch. Matthew Wells, former
researcher in the Africa Division at Human Rights Watch, also contributed
significant research to this report. The report would not have been possible
without the valuable research and writing contributions of Columbia Law School Human
Rights Clinic student Naz Ahmad, JD ‘14. The report was edited by Peter
Rosenblum, former faculty co-director of Columbia Law School’s Human
Rights Institute and by the following individuals at Human Rights Watch: Maria
McFarland Sánchez-Moreno, deputy US Program director; James Ross, legal
and policy director; Joseph Saunders, deputy program director; and Danielle
Haas, senior editor.

We want to extend our thanks to the men and women prosecuted
for terrorism-related offenses who shared their experiences for this report. We
are also very grateful to the many individuals, families and community members
across the United States who opened their doors to share their insight on the
effects of the policies discussed in this report on themselves and their
broader communities.

We are grateful to the many
defense attorneys, civil society leaders, activists and legal scholars who
spoke to us about their experiences and impressions of US federal
counterterrorism policy. Defense attorneys, activists and community members
across the country gave freely of their time and perspective on, and experience
of domestic counterterrorism policy. In particular, we want to thank community
members and defense attorneys in Boston, Chicago, New York, Albany, Washington,
DC, Dallas, Houston, Portland, Cherry Hill and Minneapolis. We are grateful for the input and support of Jeanne Theoharis, Professor of Political Science at Brooklyn College. We are also grateful to
law enforcement officials, former prosecutors and judges who spoke candidly
about their experiences investigating, prosecuting and presiding over federal
counterterrorism cases. We would like to thank the few prison officials who
allowed us to conduct interviews in their facilities.

We are grateful to the numerous
individuals who provided thoughtful comments on this report, including Arun
Kundnani, professor at New York University and author of “The Muslims of
Coming;” Michael German, fellow at the Brennan Center for Justice; Nahal
Zamani, advocacy program manager at the Center for Constitutional Rights; and
at the American Civil Liberties Union: Hina Shamsi, director, national security
project; and David C. Fathi, director, national prison project. While this
research has been reviewed by numerous individuals, Human Rights Watch and
Columbia Law School’s Human Rights Institute take full responsibility for
the findings presented.

The Columbia Law School’s
Human Rights Institute is grateful to the Open Society Foundations and Bullitt
Foundation for their financial support of the Institute’s
Counterterrorism and Human Rights Project, and to Columbia Law School for its
ongoing support.

Human Rights Watch is
grateful to The Atlantic Philanthropies for their support of its US
counterterrorism work.

Appendix

A. Cases Reviewed

Case

Age at
Time of Offense

Sting

Material
Support

Fair
Trial Concerns

Offense
– Conviction

Sentencing
Concerns (including sentence)

Setention
7 Treatment

Ahmed Abu Ali

21

Evidence Obtained by Coercion; Classified Evidence

(1) Conspiracy to provide material support and (2)
providing material support and resources to a designated foreign terrorist
organization (Al-Qaeda); (3) conspiracy to provide and (4) providing material
support to terrorists; (5) contribution of services to Al-Qaeda and (6)
receipt of funds from Al-Qaeda; (7) conspiracy to assassinate the president
of the United States; (8) conspiracy to commit aircraft piracy; (9)
conspiracy to destroy aircraft

Attempt to provide material support to a foreign
terrorist organization; aggravated identity theft

20 years

Pre-Trial Solitary Confinement, Other Conditions and
Impact on Rights to a Fair Trial and Counsel

Adel Daoud

19

Particularly Vulnerable Targets: Mental Illness,
Indigence

Use of FISA-Derived evidence at trial

Attempt to use a weapon of mass destruction;

Pre-trial (mandatory life imprisonment if convicted)

Rezwan Ferdaus

26

Identifying Targets for Prosecution Based on
Religious or Political Views; Particularly Vulnerable Targets: Mental
Illness, Indigence; Informants Playing a Key Role in Generating or Furthering
the “Plot,” Informants with Criminal Histories

Pleaded guilty: conspiracy to destroy national
defense premises, conspiracy to damage and destroy buildings owned by the US
government; conspiracy to provide material support to a designated foreign
terrorist organization

17 years

Fort Dix Five

Dritan Duka: 28

Eljvir Duka 23

Shain Duka: 26

Mohammed Shnewer: 22

Serdar Tatar: 23

Identifying Targets for Prosecution Based on
Religious or Political Views, Particularly Vulnerable Targets: Individuals
Seeking Religious Guidance, Informants Playing Key Roles in Generating or
Furthering the “Plot”

Evidence of Unrelated Terrorism or Violence, Use of
FISA-Derived Evidence at Trial, Anonymous Juries, Selective Use of Informant
Evidence;

Pleaded guilty: conspiracy to provide material
support to a foreign terrorist organization

15 years

Pre-Trial Solitary Confinement, Other Conditions and
Impact on Rights to a Fair Trial and Counsel; Special Administrative Measures
– Severe Restrictions Imposed Through SAMs

Case

Age at
Ttime of Offense

Sting

Material
Support

Fair Trial
Concerns

Offense
– Conviction

Sentencing
Concerns

Detention
and Treatment

Oussama Kassir

33-34

Impact of Pre-Trial Solitary on Pleas and Trial
Preparation

Conspiracy to provide
material support to terrorists; providing material support to terrorists;
conspiracy to provide material support to a foreign terrorist organization;
providing material support to a foreign terrorist organization; conspiracy to
kill or maim persons overseas; and distributing information relating to
explosives, destructive devices, and weapons of mass destruction

Pleaded guilty: attempt to provide material support
to a designated foreign terrorist organization

7.5 years

Pre-Trial Solitary Confinement, Other Conditions and
Impact on Rights to a Fair Trial and Counsel - Impact of Pre-Trial Solitary
on Pleas and Trial Preparation

Tarek Mehanna

Indictment period lasted from 2001-2009; 26 years old
when arrested

Broad Charges

Evidence of Unrelated Terrorism or Violence;
Terrorism “Experts”

Conspiracy to provide material support to a
designated foreign terrorist organization; conspiracy to provide material
support to terrorists; provision of material support to terrorists;
conspiracy to kill in a foreign country; conspiracy to provide false
statements; provision of false statements;

17 years

Special Administrative Measures – SAMs and the Attorney-Client
Relationship

Conspiracy to provide material support to a
designated foreign terrorist organization; unlawful possession of weapons

15 years

Pre-trial Solitary Confinement, Other Conditions and
Impact on Rights to a Fair Trial and Counsel

Mohammed Mohamud

19

Anonymous Witnesses

Attempt to use a weapon of mass destruction

Not yet sentenced

Newburgh Four

James Cromitie: 45

David Williams: 28

Onta Williams: 32

Laguerre Payen: 27

Identifying Targets for Prosecution Based on
Religious or Political Views, Particularly Vulnerable Targets: Mental
Illness, Indigence, Informants Ignoring Targets’ Reluctance to Engage
in Terrorism, Informants Playing Key Roles in Generating or Furthering the
“Plot,” Informants with Criminal Histories

Conspiracy to use weapons of mass destruction in the
US; attempt to use weapons of mass destruction in the US; conspiracy to
acquire and use anti-aircraft missiles; attempt to acquire and use
anti-aircraft missiles; conspiracy to kill officers and employees of the US;
attempt to kill officers and employees of the US (D. Williams & Cromitie)

Lengthy Sentences in Informant Cases;

Cromitie: 25 years

David Williams: 25 years

Onta Williams: 25 years

Laguerre Payen: 25 years

Case

Age at Time
of Offense

Sting

Material
Support

Fair Trial
Concerns

Offense
– Conviction

Sentencing
Concerns

Detention
and Treatment

Portland Seven

Jeffrey Leon Battle:28

Muhammad Ibrahim Bilal: 20

Ahmed Ibrahim Bilal: 18

Patrice Lumumba Ford: 27

Maher Hawash: 24

Martinique Lewis: 22

Particularly Vulnerable Targets: Mental Illness

Jeffrey Leon Battle & Patrice Lumumba Ford: plead
guilty to conspiracy to levy war against the US

Conspiracy to and provision of material support to a
terrorist organization; conspiracy to make a contribution of funds, goods, or
services to Al-Qaeda; making or receiving a contribution of funds, goods, or
services to Al‑Qaeda; identification document fraud

C. Length of Time in Pretrial Solitary Confinement

At least twenty-two individuals whose cases are documented
in this report were held in some form of pretrial solitary confinement for
varying lengths of time.[781] Seven
of those individuals were held in Special Housing Units (SHUs) where they
occasionally shared a cell with one other detainee for short periods of time
between arrest and sentencing.[782]

There were 494 individuals on the Justice Department list of
convictions for terrorism-related offenses between September 1, 2001 and December
31,2011, which is the most current Justice Department data publicly available
on terrorism-related cases.

The original Justice Department PDF lists the cases by
Justice Department category. Category I cases involve charged violations of
federal statutes that are directly related to international terrorism
(regardless of the offense of conviction). Category II cases involve charged
violations of a variety of other statutes where the investigation involved an
identified link to international terrorism.

DOJ Category

Number of Offenders

Percentage of Offenders

I

225

46%

II

269

54%

Total

494

100%

Number of Convictions and Offenses Involved

Among the 494 offenders, there were 917 separate
convictions.[783] The
majority of offenders on the DOJ list were only convicted of a single offense. However,
22 percent of those on the list were convicted of three or more offenses. The
917 convictions included 140 unique offenses. The two
most frequent offenses, “Providing Material Support” and
“Conspiracy,” account for more than 1 in 4 of the DOJ convictions.

We examined sentences for those conviced of the offenses of Providing Material Support to Terrorists (18 U.S.C. §
2339A), Providing Material Support to Designated Terrorist Organizations (18
U.S.C. § 2339B), and Conspiracy (18 U.S.C. § 371). Sentencing data
within the dataset was complicated by the fact that individuals could be
convicted of multiple offenses, and multiple counts per offense, yet have a
single sentence. Additionally, the circumstances regarding the crime of two
people convicted of the same offense can greatly differ. Therefore, it is
difficult to connect a sentence to an offense code for comparative analysis. However,
exploratory analysis does provide some worthwhile information.

First, we analyzed those individuals convicted of a single
offense, negating any influence of additional offenses on sentencing. We found
that:

All 12 people with a single conviction of Providing
Material Support to Terrorists (18 U.S.C. § 2339A) were given prison
sentences with the average sentence of 132 months. A quarter of this group was
given the maximum 15 year sentence.

Nearly all (96 percent) of the 48 people
convicted only of Providing Material Support to Designated Terrorist
Organizations (18 U.S.C. § 2339B) were given prison sentences—averaging
87 months. Of those, 15 percent were given the maximum 15-year sentence.

There were 28 people convicted of Conspiracy
(18 U.S.C. § 371). Nearly 3 out 4 were given a prison sentence. Prison
sentences averaged nearly 2 years for Conspiracy convictions.

We gathered information from court documents on whether
convictions were secured through guilty pleas or through trial for 489 of the
494 defendants. Of those, 74.2 percent were secured through plea. In
comparison, in FY 2012, 97 percent of all federal convictions were secured by
plea, indicating that terrorism defendants appear to be more likely (25.8
percent) to risk trial than other federal defendants (3 percent).[784]

If we examine the types of convictions for material support or
conspiracy charges, the vast of majority of those who were only convicted of a
single crime pled guilty. Over 94 percent of those convicted only of
conspiracy, and 87 percent of those convicted only of material support, pled
guilty. Those that went to trial were more likely to have faced multiple
charges of conspiracy and/or material support.

Those that went to trial consistently received longer prison
sentences than those who pled. Of people only convicted of Material Support,
those convicted by trial received 57 months more prison time, on average, than
those who pled. Those who went to trial for both Material Support and
Conspiracy charges received sentences nearly three times, or nearly 18 years,
longer, on average, than people who pled to similar charges.[785]

E. Government Correspondence

Human Rights Watch and Columbia Law
School’s Human Rights Institute letter to the Federal Bureau of
Investigation on November 21, 2012

Human Rights Watch and Columbia Law
School’s Human Rights Institute letter to the Department of Justice
National Security Division on February 25, 2013

Department of Justice’s reponse to
Human Rights Watch and Columbia Law School’s Human Rights Institute on
May 23, 2103

[1]
In 2012, Human Rights First received these updated statistics from the
Department of Justice through a Freedom of Information Act request, “Let
the Numbers do the Talking: Federal Courts Work [Infographic],” Human
Rights First press release, July 12, 2012,
http://www.humanrightsfirst.org/press-release/let-numbers-do-talking-federal-courts-work-infographic
(accessed June 18, 2014) ; US Department of Justice, National Security
Division, “Introduction to National Security Division Statistics on
Unsealed International Terrorism and Terrorism-Related Convictions,” June
6, 2012, http://www.fas.org/irp/agency/doj/doj060612-stats.pdf (accessed June
18, 2014).

[2] DOJ-NSD
makes a distinction between “international terrorism” and
“domestic terrorism,” and crimes related solely to domestic
terrorism are explicitly excluded from its chart. See US Department of Justice,
National Security Division, “Introduction to National Security Division
Statistics on Unsealed International Terrorism and Terrorism-Related
Convictions,” http://www.fas.org/irp/agency/doj/doj060612-stats.pdf
(accessed June 28, 2014), pp. 1-2.

[3] See
Methodology. In analyzing the data, we relied on publicly available information
released by the Department of Justice. In September 2013, a federal audit
revealed that the Justice Department had overstated the number of terrorism
convictions, as well as several other key indicators. Ellen Nakashima,
“Audit: Justice Department office overstated terrorism conviction
statistics,” Washington Post, September 17, 2013,
http://articles.washingtonpost.com/2013-09-17/world/42141849_1_terrorism-charges-u-s-attorneys-horowitz
(accessed June 18, 2014). It is not possible to determine how the audit’s
findings relate to the information publicly released by the Justice Department
because individual-level data were not provided, making it impossible to
determine which inaccuracies, if any, were contained in the aggregated
document.

[4]
According to one study, since 9/11, terrorist attacks by American Muslims have
caused 37 deaths within the US, spread over seven cases. Charles Kurzman,
“Muslim-American Terrorism in 2013,” University of North Carolina,
Chapel Hill, Department of Sociology, February 5, 2014,
http://sites.duke.edu/tcths/files/2013/06/Kurzman_Muslim-American_Terrorism_in_2013.pdf
(accessed June 18, 2014). There is no single definition of terrorism under
international law, and many of the definitions used by countries are overly
broad. However, the United Nations (UN) special rapporteur on human rights and
counterterrorism has argued that the concept of terrorism includes only those
acts or attempted acts “intended to cause death or serious bodily
injury” or “lethal or serious physical violence” against one
or more members of the population, or that constitute “the intentional
taking of hostages” for the purpose of “provoking a state of terror
in the general public or a segment of it” or “compelling a
Government or international organization to do or abstain from doing something.”
See UN Human Rights Council, Report of the Special Rapporteur on promotion and
protection of human rights and fundamental freedoms while countering terrorism,
Martin Scheinin, Ten areas of best practices in countering terrorism,
A/HRC/16/51, December 22, 2010,
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G10/178/98/PDF/G1017898.pdf?OpenElement
(accessed June 18, 2014), para. 28. Scheinin’s successor, Ben Emmerson,
has stated he intends to “adopt and build” on these recommended
practices. “Intervention,” UN Special Rapporteur on counter
terrorism and human rights, Ben Emerson, speech before the
Secretary-General’s Symposium on International Terrorism Cooperation, UN
Headquarters New York, September 19, 2011, transcript at
http://www.un.org/en/terrorism/ctitf/pdfs/sr_on_ct_and_hr_sg_symposium.pdf
(accessed June 18, 2014). Similarly, the UN Secretary-General’s High
Level Panel on Threats, Challenges and Change concluded that for a violent act
to be deemed terrorist, its purpose must be “to intimidate a population,
or to compel a Government or an international organization to do or to abstain
from doing any act.” UN High Level Panel on Threats, Challenges and
Change, “A More Secure World: Our Shared Responsibility,” December
2004,
http://www.un.org/en/peacebuilding/pdf/historical/hlp_more_secure_world.pdf
(accessed June 18, 2014), para. 164(d). For more information, see Human Rights
Watch, In the Name of Security: Counterterrorism Laws Worldwide since
September 11 (New York: Human Rights Watch, 2012),
http://www.hrw.org/sites/default/files/reports/global0612ForUpload_1.pdf,
pp.17-25.

[5]
See US Department of Justice, Federal Bureau of Investigation, “Report to
the National Commission on Terrorist Attacks upon the United States: The
FBI’s Counterterrorism Program Since September 2001,” April 14,
2004, http://www.fbi.gov/stats-services/publications/fbi_ct_911com_0404.pdf
(accessed June 18, 2014); US Department of Justice, Office of Inspector
General, Audit Division, “The External Effects of the Federal Bureau of
Investigation’s Reprioritization Efforts,” Audit Report no. 05-37
(September 2005), http://www.justice.gov/oig/reports/FBI/a0537/final.pdf
(accessed June 18, 2014); US Department of Justice, Federal Bureau of
Investigation, FY 2013 Budget Request At A Glance,
http://www.justice.gov/jmd/2013summary/pdf/fy13-fbi-bud-summary.pdf (accessed
June 19, 2014).

[7]
See US Department of Justice, Federal Bureau of Investigation, “Report to
the National Commission on Terrorist Attacks upon the United States: The
FBI’s Counterterrorism Program Since September 2001,”
http://www.fbi.gov/stats-services/publications/fbi_ct_911com_0404.pdf (accessed
July 11, 2014).

[9] See
John Ashcroft, US Department of Justice, The Attorney General’s
Guidelines for FBI National Security Investigations and Foreign Intelligence
Collection § II.A (2003) (Ashcroft Guidelines),
http://www.justice.gov.archive/olp/ag-guidelines-10312003.pdf (accessed June
24, 2014) (authorizing “the proactive collection of information
concerning threats to the national security, including information on
individuals, groups, and organizations of possible investigative interest, and
information on possible targets of international terrorist activities or other
national security threats”).

[13] For
example, the 1976 Levi Guidelines, the high watermark of restrictions on the
FBI’s powers, permitted a preliminary investigation only where there were
“allegations or other information that an individual or group may be
engaged in activities which involve or will involve the use of force or
violence and which involve or will involve the violation of federal law.”
Edward H. Levi, US Department of Justice, Domestic Security Investigation
Guidelines § II.C. (1976). In contrast, the Ashcroft Guidelines permitted
the initiation of preliminary investigations, which involve intrusive
investigative methods, merely where “information is received of such a
nature that some follow-up as to the possibility of criminal activity is
warranted.” John Ashcroft, US Department of Justice, The Attorney
General’s Guidelines on General Crimes, Racketeering Enterprise and
Terrorism Enterprise Investigations § II.A (2002)
http://www.usdoj.gov/olp/generalcrimes2.pdf; Mukasey Guidelines, §
II.B.3.b; see also DIOG, § 18.6.

[14]
A growing number of state and local law enforcement are part of Joint Terrorism
Task Forces with the FBI, which exist in 103 US cities. See US Department of
Justice, Federal Bureau of Investigation, “Protecting America from
Terrorist Attack: Our Joint Terrorism Task Forces,”
http://www.fbi.gov/about-us/investigate/terrorism/terrorism_jttfs (accessed
June 19, 2014).

[15]
In its 2004-2009 Strategic Plan, the FBI noted: “The FBI’s greatest
concern currently is the threat from Al-Qaeda attack cells” that
“maintain strict operational and communications security” with
“militant Islamic groups and mosques in the United States.” It
warned of “an extensive militant Islamic presence in the United
States” focused on “fund-raising, recruitment, and training.”
US Department of Justice, Federal Bureau of Investigation, Office of Victim
Assistance, “Federal Bureau of Investigation Strategic Plan: 2004 –
2009,” September 9, 2004, https://www.hsdl.org/?viewanddid=466149
(accessed June 19, 2004), pp. 26-27. NCJRS Abstracts Database (206803). See
also, Donald Van Duyn, Deputy Assistant Director, Federal Bureau of
Investigation Counterterrorism Division, testimony before the House Homeland
Security Committee Subcommittee on Intelligence, Information Sharing, and
Terrorism Risk Assessment, Washington, DC, September 20, 2006, transcript at
http://www.fbi.gov/news/testimony/islamic-radicalization (accessed June 19,
2014) (“Al-Qaeda is also attempting to broaden its appeal to
English-speaking Western Muslims”).

[16] In
August 2011 President Obama stated, “[T]he most likely scenario that we
have to guard against right now ends up being more of a lone wolf operation
than a large, well-coordinated terrorist attack.” CNN Anchor Wolf Blitzer
interview with Barack Obama, “Obama: Biggest terror fear is the lone
wolf,” post to “CNN Security Clearance” (blog), CNN.com,
August 16, 2011,
http://security.blogs.cnn.com/2011/08/16/obama-biggest-terror-fear-is-the-lone-wolf/
(accessed June 19, 2014). This transition in focus was accelerated by the
December 2008 Fort Hood shooting by US Army Major Nidal Malik Hasan, who had
sought guidance from Al-Qaeda in the Arabian Peninsula figure Anwar Al Awlaki
but ultimately acted alone. See William H. Webster Commission, “Final
Report of the William H. Webster Commission on the Federal Bureau of
Investigation, Counterterrorism Intelligence, and the Events at Fort Hood,
Texas on November 5, 2009,” July 19, 2012,
http://www.fbi.gov/news/pressrel/press-releases/final-report-of-the-william-h.-webster-commission
(accessed June 19, 2014).

[17]
The government defines “violent extremists” as individuals who
support or commit ideologically motivated violence to further political,
social, or religious goals. Although the government recognizes that right-wing
and other ideology-based violence is of concern, it “prioritize[s]
preventing violent extremism and terrorism that is inspired by al-Qaida and its
affiliates….” Executive Office of the President of the United
States, “Strategic Implementation Plan for Empowering Local Partners to
Prevent Violent Extremism in the United States,” December 1, 2011, http://www.whitehouse.gov/sites/default/files/sip-final.pdf
(accessed June 19, 2014), p.2.

[18]
The government’s theories of radicalization are not uniform. The New York
Police Department’s (NYPD) “conveyor belt” theory, described
in a 2007 report, argues that predictable behaviors and patterns mark the
journey of a terrorist, through various stages of extremist indoctrination and
toward “jihadization,” i.e., planning for a terrorist attack. New
York Police Department Intelligence Division, “Radicalization in the
West: The Homegrown Threat,” May 2, 2007,
http://www.nypdshield.org/public/SiteFiles/documents/NYPD_Report-Radicalization_in_the_West.pdf
(accessed June 19, 2014). In 2009, the NYPD issued a revised version of the
report that disavowed some aspects of the 2007 report, although Muslim and
civil liberties groups criticized it as continuing to include “numerous
errors and harmful stereotypes.” “NYPD Clarification of
Radicalization Report a ‘Welcome First Step,’” Muslim Public
Affairs Council, September 10, 2009, http://www.mpac.org/issues/national-security/nypd-clarification-of-radicalization-report-a-welcome-first-step.php
(accessed June 19, 2014). The FBI’s radicalization theory likewise
described stages: preradicalization, identification, indoctrination, and action.
Carol Dyer et al., “Countering Violent Islamic Extremism,” FBI
Law Enforcement Bulletin, vol. 76, no. 12 (December 2007),
http://www.fbi.gov/stats-services/publications/law-enforcement-bulletin/2007-pdfs/dec07leb.pdf
(accessed June 19, 2014), pp. 3-9.

[19]
The FBI’s Behavioral Analysis Unit is involved in “operational
threat assessment” and terrorism investigations, although we were only
able to learn of its role as a consultant on the level of threat posed by an
individual in one of our cases: Hosam Smadi (see section II). “Foiled:
Inside the Smadi Case,” US Department of Justice, Federal Bureau of
Investigation press release, November 5, 2010, http://www.fbi.gov/news/stories/2010/november/terror-plot-foiled/terror-plot-foiled
(accessed June 19, 2010). For a general description of the unit, see US
Department of Justice, Federal Bureau of Investigation, “Report to the
National Commission on Terrorist Attacks upon the United States: The
FBI’s Counterterrorism Program Since September 2001,” April 14,
2004, http://www.fbi.gov/stats-services/publications/fbi_ct_911com_0404.pdf
(accessed June 28, 2014).

[20]For a discussion
of divergent views of radicalization among US government agencies, see Faiza
Patel, Rethinking Radicalization (New York: Brennan Center for Justice
2011), http://www.brennancenter.org/publication/rethinking-radicalization
(accessed July 11, 2014), pp.13-18.

[21]
“These individuals have no typical profile; their experiences and motives
are often distinct,” Director of the FBI Robert S. Mueller told a US
Senate committee in September 2012. “But they are increasingly savvy and
willing to act alone, which makes them difficult to find and to stop.”
Robert S. Mueller, Director, Federal Bureau of Investigation, statement before
the Senate Committee on Homeland Security and Governmental Affairs, Washington,
DC, September 19, 2012. “Supporters of these groups and their associated
ideologies come from different socioeconomic backgrounds, ethnic and religious
communities, and areas of the country, making it difficult to predict where violent
extremist narratives will resonate.” Office of the President,
“Empowering Local Partners to Prevent Violent Extremism in the United
States,” August 2011, http://www.whitehouse.gov/sites/default/files/empowering_local_partners.pdf
(accessed July 10, 2014), p. 1.

[23]
The Pew Forum on Religion and Public Life, “Little Support for Terrorism
Among Muslim Americans,” December 19, 2009,
http://www.pewforum.org/Politics-and-Elections/Little-Support-for-Terrorism-Among-Muslim-Americans.aspx
(accessed July 10, 2014).

[24]
In 2003, Newsweek reported that top FBI officials had ordered each of
the Bureau’s 56 field offices to develop “demographic”
profiles of their localities that included tallies of the number of mosques, “to
help set investigative goals.” Michael Isikoff, “Investigators: The
FBI Says, Count the Mosques,” Newsweek, February 2, 2003,
http://www.thedailybeast.com/newsweek/2003/02/02/investigators-the-fbi-says-count-the-mosques.html
(accessed June 19, 2014). In October 2006, the New York Times reported the
FBI’s adoption of a new program called Domain Management, a data-mining
system used to “identify threats.” A high-level FBI officer
reportedly put on a demonstration of Domain Management for other FBI agents,
displaying a map of San Francisco “pocked with data showing where Iranian
immigrants were clustered,” where, he said, “an F.B.I. squad was
‘hunting.’” Scott Shane and Lowell Bergman, “F.B.I.
Struggling to Reinvent Itself to Fight Terror,” New York Times, October
10, 2006,
http://www.nytimes.com/2006/10/10/us/10fbi.html?pagewanted=printand_r=0
(accessed June 19, 2014). Documents that the American Civil Liberties Union
(ACLU) obtained through FOIA corroborate these reports. American Civil
Liberties Union, “ACLU EYE on the FBI: The FBI is Engaged in
Unconstitutional Racial Profiling and Racial ‘Mapping,’”
October 20, 2011,
https://www.aclu.org/files/assets/aclu_eye_on_the_fbi_alert_-_fbi_engaged_in_unconstitutional_racial_profiling_and_racial_mapping_0.pdf
(accessed June 19, 2014). For an analysis of this and related practices, see
Akbar, “Policing ‘Radicalization,’” UC Irvine Law
Review.

[25]
For example, in February 2012, FBI informant Arvinder Singh alleged that the
FBI asked him to infiltrate mosques throughout Iowa and particularly in Des
Moines, giving him pictures of persons of interest and asking him to report on
their conversations. Kiran Khalid, “Iowa Muslim Leader: Law enforcement
betrayed us,” post to “In America” (blog), CNN.com, January
3, 2012, http://inamerica.blogs.cnn.com/2012/02/03/iowa-muslim-leader-law-enforcement-betrayed-us/
(accessed June 19, 2014). In another case, paid informant Craig Monteilh
alleged that the FBI directed him to “gather as much information on as
many people in the Muslim community as possible” at an Irvine, California
mosque in July 2006—only two months after reportedly assuring the local
community that they were not under surveillance. See First Amended Complaint
Class Action ¶¶ 86-146, Fazaga v.
FBI, 844 F.Supp.2d 1022 (C.D. Cal. 2012) (No. 8:11-cv-00301-CJC(VBKx)); “This
American Life: The Convert,” Chicago Public Radio, August 10, 2012; see
also generally, Trevor Aaronson, “The Informants,” Mother Jones magazine,
September/October 2011, http://www.motherjones.com/politics/2011/08/fbi-terrorist-informants?page=2
(accessed June 19, 2014); Petra Bartosiewicz, “To Catch a Terrorist: The
FBI hunts for the enemy within,” Harper’s magazine, August
2011, http://harpers.org/archive/2011/08/to-catch-a-terrorist/ (accessed June
19, 2014).

[27]
“The FBI does not investigate individuals, groups, or communities based
on ethnicity or race.” “FBI Response to ACLU Report,” US
Department of Justice, Federal Bureau of Investigation press release, October
20, 2011,
http://www.fbi.gov/news/pressrel/press-releases/fbi-response-to-aclu-report
(accessed June 19, 2014).

[28]
Matt Apuzzo and Adam Goldman, “With CIA help, NYPD moves covertly in
Muslim areas,” Associated Press, August 23, 2011,
http://www.ap.org/Content/AP-in-the-News/2011/With-CIA-help-NYPD-moves-covertly-in-Muslim-areas
(accessed June 19, 2014) (quoting then-FBI General Counsel Valerie Caproni:
"If you're sending an informant into a mosque when there is no evidence of
wrongdoing, that's a very high risk thing to do. You're running right up
against core constitutional rights. You're talking about freedom of
religion.”).

[30]
The four exceptions are: the Boston Marathon bombing in 2013, an attempted car
bombing at Times Square in 2010 by Faisal Shahzad, a plot to bomb the New York
City subway system in 2009 involving Najibullah Zazi, and the shooting at an El
Al counter at Los Angeles airport in 2002 involving Hesham Hadayet.

[31] Journalist
Trevor Aaronson conducted a statistical study of terrorism-related prosecutions
of 508 defendants and found that nearly half of the investigations resulting in
terrorist-related charges involved the use of confidential informants. Of the
508 defendants convicted on terrorism or terrorism-related charges, 243 cases
involved the use of an informant, 158 involved a sting operation, and 49
defendants were actually guided by the informant in forming the plan which
would ultimately lead to their convictions. Aaronson, “The
Informants,” Mother Jones magazine,
http://www.motherjones.com/politics/2011/08/fbi-terrorist-informants?page=2.
“Since 2009, nearly 50 percent of terrorism cases have involved
informants.” New York University School of Law, Center on Law and
Security, “Terrorist Trial Report Card: September 11, 2001 –
September 11, 2011,” (undated)
http://www.lawandsecurity.org/Portals/0/Documents/TTRC%20Ten%20Year%20Issue.pdf
(accessed June 28, 2014).

[38]
On his first trip to the Staten Island mosque, for example, Eldawoody reported
on the number of people at each prayer service, the language in which sermons
were given, and the languages spoken by attendees.He reported the presence or
absence of donation boxes in the mosque, and was instructed to take down
license plate numbers in the parking lot. Trial Transcript at 1019-1020, 1022, Siraj,
468 F.Supp. 2d 408 (No. 05-CR-104(NG)).

[39]
Ibid., pp.2606-2607. (Witness Testimony of Shahina Parveen, mother of Matin
Siraj: “He had supported his father, because his father is disabled from
his both ears and he has hernia, and he couldn’t work any heavy
work… [Matin] was very much concerned about the difficulties of his
father, and he helped his father. He supported.”) Siraj’s family
had emigrated from Pakistan in 1998. Cato, “The Weaponization of
Immigration,” Backgrounder - Center for Immigration Studies
(February 2008),
http://www.cis.org/sites/cis.org/files/articles/2008/back108.pdf (accessed July
8, 2014), p. 4.

[52]
A November 2011 response to a FOIA request filed by Yassin Aref revealed that
the FBI believed that Aref was actually an Al-Qaeda operative named Mohammed
Yassin. Aref’s attorneys recently filed a Motion to Vacate Sentence
Conviction, alleging that Mohammed Yassin was in fact an Al-Qaeda agent who was
killed in a 2010 missile strike in Gaza. Despite constructive knowledge of that
fact, the prosecution continued to allege in ex parte filings to the District
and Circuit courts that Yassin Aref was an Al-Qaeda agent named Mohammed Yassin.
Freedom of Information Act Response, received November 18, 2011.

[85]
“Man Who Admitted Attempting to Use a Weapon of Mass Destruction to Bomb
a Downtown Dallas Skyscraper is Sentenced to 24 Years in Federal Prison,”
US Department of Justice press release, October 19, 2010,
http://www.justice.gov/usao/txn/PressRel10/smadi_sen_pr.html (accessed June 20,
2014).

[86]
“I was seeing things, I was downstate before I came up and I seen all
kinds of stuff because I guess the drugs were still stimulant in my
body.” James Cromitie, response to question during his Initial Parole
Board Hearing, Fishkill Correctional Facility, New York, August 6, 1991,
transcript at http://www.thrnewmedia.com/assets/terror/cromitie91.pdf (accessed
June 20, 2014), p. 8, line 14.

[87]
Objection to Presentence Investigation Report at 2, United States v. Cromitie,
No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011), aff’d, 727 F.3d 194
(2d Cir. 2013) (“He [Laguerre Payen] has been diagnosed as schizophrenic
by several doctors over the last 10 years, and no doctor has ever repudiated
that diagnosis.”); Chris Dolmetsch and Bob Van Voris, “New York
Synagogue-Bomb Plotter Laguerre Payen Sentenced to 25 Years,” Bloomberg,
September 7, 2011, http://www.bloomberg.com/news/2011-09-07/new-york-synagogue-bomb-plotter-laguerre-payen-sentenced-to-25-years.html
(accessed June 20, 2014) (“Samuel Braverman, Payen’s attorney,
disagrees with a pre-sentencing report that called his client’s mental
health claims ‘unsupported.’ He said Payen has been diagnosed as a
schizophrenic by several doctors. Braverman requested that the judge ask the US
Bureau of Prisons to place Payen in a facility with a medical center so his
mental condition can be treated.”).

[91]
See also, Showket M Ferdaus, “Standing up for Rezwan: Anatomy of a Terror
Plot ‘Orchestrated and Facilitated by the Government,’” notmainstreemnews.com,
http://www.notmainstreamnews.com/rezwan/standingupforrezwan.htm (accessed June
20, 2014).

[107]
“Man Sentenced in Boston for Plotting Attack on Pentagon and U.S. Capitol
and Attempting to Provide Detonation Devices to Terrorists,” US
Department of Justice, Federal Bureau of Investigation press release, November
1, 2012,
http://www.fbi.gov/boston/press-releases/2012/man-sentenced-in-boston-for-plotting-attack-on-pentagon-and-u.s.-capitol-and-attempting-to-provide-detonation-devices-to-terrorists
(accessed June 20, 2014).

[112]
Howlett, “The two sides of one law, the two lives of one man,” http://www.nj.com/news/ledger/index.ssf?/news/ledger/stories/patriotact/partthree.html.
See also, Peter Y. Hong, “Portland Terror Suspect Released Pending
Trial,” Los Angeles Times, October 11, 2002,
http://articles.latimes.com/2002/oct/11/nation/na-portland11 (accessed June 20,
2014). Similar information was given during Human Rights Watch
interviews with prosecutor Charles Gorder and with defense attorneys involved
in the case. Human Rights Watch interviews, Portland, Oregon, August 13-17,
2012.

[113]
“But aside from contemplating killing Jews at a synagogue, an idea that
Battle subsequently dropped….” Nick Budnick, “The Making of a
‘Terrorist’: John Ashcroft says native Portlander Patrice Lumumba
Ford is a threat to national security—but friends and family are having
trouble connecting the dots,’” Willamette Week, October 16,
2002, http://www.wweek.com/portland/article-1377-the_making_of_a_terrorist.html
(accessed June 20, 2014); “Yet, according to the prosecutor's filing,
Battle asked about making a bomb in September 2002, after a series of
conversations in which he spoke of his consideration and ultimate rejection of
committing a terrorist act in the United States.” “Filing reveals
new details of Portland jihad group,” Associated Press, November
20, 2003, http://tdn.com/news/state-and-regional/filing-reveals-new-details-of-portland-jihad-group/article_6c3b482e-2eb0-5762-b009-abfc1aade522.html
(accessed June 20, 2014).

[115]
U.S. Department of Justice, Remarks of Attorney General John Ashcroft, Press
Conference, October 4, 2002,
http://www.justice.gov/archive/ag/speeches/2002/100402agnewsconferenceportlandcell.htm
(accessed July 11, 2014).

[118]
Defendant Habis al-Saoub remained in Asia when the other defendants traveled
back to the US. He reportedly joined Al-Qaeda and was killed in the Fall of
2003 in Pakistan. Hal Bernton, “Oregon conspirators attack war on terror,
get 18-year jail terms,” Seattle Times, November 25, 2003, http://seattletimes.com/html/localnews/2001800337_portlandseven25m.html
(accessed June 20, 2014); Howlett, “The two sides of one law, the two
lives of one man,” Newark Star-Ledger, http://www.nj.com/news/ledger/index.ssf?/news/ledger/stories/patriotact/partthree.html;
“Two plead guilty in Oregon terror case,” CNNNews Online,
October 16, 2003, http://www.cnn.com/2003/LAW/10/16/terror.suspects/ (accessed
June 20, 2014).

[119]
Because Hussain was not authorized to offer this amount of money, he turned off
the recording device when he made it and subsequently lied about the offer at
trial. Trial Transcript at 773, United States v. Cromitie, No.
7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011), aff’d, 727 F.3d 194 (2d
Cir. 2013). A month later, Hussain reminded Cromitie about the offer in a
recorded phone conversation. Ibid., p. 1572.

[120]
The $250,000 offer was not sanctioned by the FBI, but the court specifically
found that the offer had been made, nonetheless. Ibid., pp. 242, 3502-87.

[142]
Trial Transcript at 3014-15, United States v. Shnewer, No. 1:07-cr-00459-RBK
(D.N.J. Apr. 29, 2009), aff’d in part, rev’d in partsub
nom. United States v. Duka, 671 F.3d 329 (3d Cir. 2011) (No. 09-2292,
09-2299, 09-2300, 09-2301, 09-2302). (Cross-Examination of Mahmoud Omar:
“Q. [D]id you indicate to Mr. Shnewer that you would be interested in
receiving copies of videos like the ones you were showing? A. I believe I said
something like that. Q. And in fact, not only did you indicate that you would
be interested in receiving copies, you actually provided to him a device, a CD
or DVD burner to facilitate his making copies for you, correct? … A. The
FBI bought it for me, I gave it to Mr. Mohamad Shnewer and he did not know how
to operate it.”) Columbia Law School’s Human Rights Institute
interview with Shain Duka, ADX Florence, July 18, 2012.

[145]
Mohamed Shnewer, Dritan Duka, and Shain Duka were sentenced to life plus 30
years; Eljvir Duka was given a life sentence and Serdar Tartar was sentenced to
33 years with a downward variance. On December 28, 2011, the Third Circuit
upheld the convictions and sentences of these five men, except for Shnewer,
whose weapons conviction and accompanying 30 year sentence was dismissed.
Shnewer is still serving a life term for the coonspiracy conviction. “Two
Additional Defendants Sentenced for Conspiring to Kill U.S. Soldiers,” US
Department of Justice press release, April 29, 2009,
http://www.justice.gov/opa/pr/2009/April/09-nsd-408.html (accessed June 20,
2014). The judge gave Tatar a lower sentenced because he believed Tatar was the
only defendant not motivated by radical Islamic views. Troy Graham,
“Final 2 Ft. Dix plotters get jail There was another life term. Then the
last of the five got 33 years,” Inquirer, April 30, 2009,
http://articles.philly.com/2009-04-30/news/25287654_1_shain-duka-fort-dix-dritan
(accessed June 20, 2014); “U.S. appeals court uphold convictions
in Fort Dix terror plot,” Associated Press, December 29, 2011,
http://www.nj.com/news/index.ssf/2011/12/us_appeals_court_upholds_convi_1.html
(accessed June 20, 2014).

[150]
Joe Verela, Bujol’s first defense counsel, noted: “Federal
investigations generally have more man hours and money. But this one, they
spent millions of dollars. Instead of one audio recorder there were three.
Instead of one camera, there were six. There were backup cameras, backup
recordings … in a typical five defendant DEA case there’s some
audio and video, some eyeball surveillance…but this thing, they
didn’t leave too many stones unturned.” Human Rights Watch phone
interview with Joe Verela, Bujol’s first defense counsel, June 21, 2012.

[167]
Decision and Order Denying Defendant’s Renewed Motion to Dismiss the
Indictment Based on Outrageous Government Misconduct at 10, Cromitie, No.
7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011). “But whenever Hussain asked
Cromitie to act on those sentiments—make a plan, pick a target, find
recruits, introduce the CI to like-minded brothers, procure guns, and conduct
surveillance—Cromitie did none of the above.” (citations omitted)

[168]
Trial Transcript at 843-844, 988, Cromitie, No. 7:09-cr-0558-CM-1
(S.D.N.Y July 8, 2011). As early as December 10, 2009 Hussain promised to give
Cromitie his BMW if he joined the mission (Decision and Order Denying the
Defendants’ Post Trial Motions at 7, Cromitie, No.
7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011); Trial Transcript at 893-894, Cromitie,
No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011)); The informant frequently
reminded Cromitie that he and any potential recruits could make significant
money in the mission (Trial Transcript at 816, 1708-1709, Cromitie, No.
7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011)); in the interim, he sometimes
provided Cromitie with money—which the FBI provided—to pay his rent
(Trial Transcript at 265, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July
8, 2011)). Hussain promised Cromitie various rewards for joining the mission,
including “a post-attack getaway trip to Miami, Puerto Rico, or Costa
Rica,” (Decision and Order Denying the Defendants’ Post Trial
Motions at 7, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011);
and his own barbershop (Trial Transcript at 1857, Cromitie, No.
7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011)).

[169]
“On October 19, Cromitie met with Hussain again. Cromitie again complained
about the treatment he received from some Jews. Hussain responded that
according to the Prophet Mohammed, Jews ‘are responsible for all the
evils in the world’ and should be ‘eliminated.’”
Decision and Order Denying Defendant’s Renewed Motion to Dismiss the
Indictment Based on Outrageous Government Misconduct at 9,United States v.
Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011), aff’d, 727
F.3d 194 (2d Cir. 2013).

[178]
Decision and Order Denying Defendants’ Renewed Motion to Dismiss the
Indictment Based on Outrageous Government Conduct at 23, United States v.
Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011), aff’d, 727
F.3d 194 (2d Cir. 2013). “Hussain translated Cromitie’s vague
‘do something to America’ comments, and his rants against Jews,
into concrete ideas that most definitely did not originate with defendant:
putting together a team (create a conspiracy) to plant IEDs at synagogues in
Riverdale (commit terrorist activity), and to shoot Stinger missiles at Air
Force aircraft in Orange County (an offense carrying a statutory 25 year
minimum.) Then Hussan (not Cromitie) made it possible for those things to
happen—or at least seem to happen” (footnotes omitted).

[179]
Chris Dolmetsch and Patricia Hurtado, “New York City Synagogue Bomb
Plotters Are Sentenced to 25 Years in Prison,” Bloomberg, June 29,
2011,
http://www.bloomberg.com/news/2011-06-29/new-york-city-synagogue-bomb-plotters-are-sentenced-to-25-years-in-prison.html
(accessed June 20, 2014).

[180]
Decision and Order Denying Defendants’ Renewed Motion to Dismiss the
Indictment Based on Outrageous Government Conduct at 23, Cromitie, No.
7:09-cr-0558-CM-1 (S.D.N.Y July 8, 2011).

[197]
Ibid. (Cross-examination of FBI special agent John Mckinley by David Adler:
“Q. And as far as this training—quote-unquote—that was going
on out there in Willis, Mr. Coates and Mr. Mohammad directed all aspects of it?
A. I believe Mr. Mirza said in his statement that they were designated as the
trainers. Q. What kind of training did Mr. Mirza provide? A. None that I'm
aware of.”)

[199]
“The philosophy that supports and encourages jihad around the world against
Americans came to live here in New Jersey and threaten the lives of our
citizens through these defendants. Fortunately, law enforcement in New Jersey
was here to stop them.” US Attorney Christopher Christie, Press
Conference, May 11, 2007, video clip, YouTube, http://www.youtube.com/watch?v=_SBIQg8t-Xo
(accessed June 20, 2014).

[203]
Tatar, who himself was interested in entering law enforcement, offered his
phone number and address for the sergeant to give to the FBI. The sergeant
called the FBI’s Philadelphia office from the 7-11, and left a detailed
message with all of the information Tatar had provided. The FBI failed to contact
the sergeant back for two weeks, at which time he was called down to the FBI
office and briefed. Ibid., pp. 4722-4736.

[209]
Ibid, p. 5708. (Cross-examination of Besnik Bakalli by Michael Riley,
inidicating that Bakalli presented himself as an ethnic Albanian who
“would like to learn more about their faith and maybe participate in that
faith.”)

[211]
Ibid., p. 5586. (Cross-examination of Besnik Bakalli by Michael Huff) (Recorded
conversation in which Eljvir and Dritan deny Bakalli’s inference that
jihad means to only a violent fight, but instead means to struggle and
sacrifice against lust.)

[213]
Trial Transcript at 5143, United States v. Shnewer, No. 1:07-cr-00459-RBK
(D.N.J. Apr. 29, 2009), aff’d in part, rev’d in partsub
nom. United States v. Duka, 671 F.3d 329 (3d Cir. 2011) (No. 09-2292,
09-2299, 09-2300, 09-2301, 09-2302). (Direct examination of Besnik Bakalli:
“Q. Now when you got back from the Poconos, how often did you go
paintballing with the Duka brothers? A. Most every Friday. Q. And did you go
paintballing sometimes on the weekends? A. Yes, Saturdays, Sundays too. Q. And
had you done that before you went to the Poconos? A. No. Q: Did you do that in
the Poconos? A. Yes. Q. And what did they tell you, the Duka brothers tell you
paintball was for? A. Train.”)

[214]
“Two Additional Defendants Sentenced for Conspiring to Kill U.S.
Soldiers,” US Department of Justice press release,
http://www.justice.gov/opa/pr/2009/April/09-nsd-408.html (accessed June 20,
2014). The judge gave Tatar a lower sentence because he believed Tatar was the
only defendant not motivated by radical Islamic views. “Final 2 Ft. Dix
plotters get jail,” Inquirer,
http://articles.philly.com/2009-04-30/news/25287654_1_shain-duka-fort-dix-dritan.

[216]
Trial Transcript at 1803, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July
8, 2011) (Judge McMahon: Isn’t it a fair view
of the evidence that Agent Fuller did not know that he [Hussain] was throwing
around quarter-million dollar offers.”).

[218]
Hussain admitted telling Agent Fuller that Onta Williams, one of the
defendants, had suggested that Laguerre Payen might be a snitch during a drive
back from Stamford when in reality it was Hussain who had made the suggestion.
Trial Transcript at 1435, Cromitie, No. 7:09-cr-0558-CM-1 (S.D.N.Y July
8, 2011).

[219]
Hamed Aleaziz, “Wondering if Your ‘Jihadist’ Friend Is With
the FBI?” March 20, 2012,
http://www.motherjones.com/mojo/2012/03/shahed-hussain-khalifah-al-akili
(accessed June 20, 2014).

[220]
Trial Transcript at 2376-2382, Cromitie, >No. 7:09-cr-0558-CM-1
(S.D.N.Y July 8, 2011). Omar lied to the FBI repeatedly over the course of the
Fort Dix investigation, about issues ranging from investigation targets to
fraudulently obtained Social Security numbers. (N.T. 10/27/08 at 2369 l. 19 to
2371 l. 19) (testimony of John Stermel, police officer with the Delaware River
Port Authority assigned to FBI’s joint terrorism task force) Despite
these signs of unreliability, the FBI continued to depend on Omar, and paid him
well for his efforts. Beginning in August 2006, the FBI paid Omar $1,500 per
week during the investigation. Omar received a total of $240,000 from the FBI.This
included: $183,500 in payment unrelated to expenses, and $54,000 for expenses
incurred during the investigation including car repair and rent.

[221] International
Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A.
Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966),
999 U.N.T.S. 171, entered into force March 23, 1976. Under article 19,
“1. Everyone shall have the right to hold opinions without interference;
2. Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of
art, or through any other media of his choice. 3. The exercise of the rights
provided for in paragraph 2 of this article carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions, but
these shall only be such as are provided by law and are necessary: … (b) For
the protection of national security or of public order (ordre public), or of public
health or morals.” While article 17 on the right to privacy and family
does not specifically allow for national security restrictions, it prohibits
any interference that is arbitrary or unlawful.

[222]
See ICCPR, art. 2, which states that “Each State Party to the present
Covenant undertakes to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present Covenant,
without distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status.” According to Prof. Manfred Nowak in his authoritative analysis
of the ICCPR, the restrictions specified in the rights to freedom of expression
and association should be interpreted narrowly. For example, terms such as
“national security” and “public safety” refer to
situations involving an immediate and violent threat to the nation. See Manfred
Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary,
(Kehl am Rhein: Engel, 2005), pp. 463-64, 504-05.

[224]
See Guidelines on the Role of Prosecutors, adopted by the Eighth United Nations
Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27
August to 7 September 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 189 (1990), guideline 13, (“In the performance of their duties,
prosecutors shall: (a) Carry out their functions impartially and avoid all
political, social, religious, racial, cultural, sexual or any other kind of
discrimination”). The right to freedom from discrimination based on
religion, ethnicity or other grounds is enshrined in numerous international
declarations and conventions, including, the Universal Declaration of Human
Rights, the International Covenant on Economic, Social and Cultural Rights, and
the International Covenant on Civil and Political Rights. Universal Declaration
of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N.
Doc. A/810 at 71 (1948), art. 2; International Covenant on Economic, Social and
Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A(XXI), 21
U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 9993 U.N.T.S. 3,
entered into force January 3, 1976, arts. 2-3; International Covenant on Civil
and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A(XXI),
21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171,
entered into force March 23, 1976, arts. 2-3, 26.

[227]
Thomas Frampton, “Lambroso’s Ghost,” New Inquiry,
March 7, 2013, http://thenewinquiry.com/essays/lombrosos-ghost/ (accessed
June 20, 2014) (arguing that this harkens back to positivist criminology, in
which criminal laws were designed to root out segments of society that were
deemed inherently problematic).

[228]
“[T]here is a lengthy public record of guilty pleas and convictions in
such cases. Federal courts and juries have overwhelmingly upheld the use of
undercover operations in terrorism sting cases. While entrapment may routinely
be cited as a defense in these cases, to date, no terrorism defendant since
9/11 has won acquittal using such a defense.” Radio Free Europe/Radio
Liberty, Department of Justice National Security Division Spoksman Dean
Boyd’s response to Trevor Aaronson’s Terror Factory, cited
in “How the FBI Helps Terrorists Succeed,” Atlantic,
February 26, 2013,
http://www.theatlantic.com/international/archive/2013/02/how-the-fbi-helps-terrorists-succeed/273537/
(accessed June 20, 2014).

[230]
“The only proper purpose of police participation is to obtain evidence of
criminal acts which they suspect someone is about to commit or in which he is
already engaged. It is not to tempt people to commit crimes in order to expose
their bad characters and punish them.” Loosely, R. v. [2001] UKHL 53,
[2002] 1 Cr App R 29 [56], available at http://www.publications.parliament.uk.

[231]
European Court of Human Rights, Ramanauskas v. Lithuania [GC], no.
74420/01, ECHR 2008, para. 55. “Police incitement occurs where the
officers involved—whether members of the security forces or persons
acting on their instructions—do not confine themselves to investigating
criminal activity in an essentially passive manner, but exert such an influence
on the subject as to incite the commission of an offence that would otherwise
not have been committed, in order to make it possible to establish the offence,
that is, to provide evidence and institute a prosecution.”

[232]
European Court of Human Rights, Case of Veselov and Others v. Russia,
nos. 23200/10, 24009/07 and 556/10, 2 October 2012, para. 90. The court did not
further explain the type of conduct that would be considered “initial
steps.”

[234]
While DOJ-NSD does distinguish between international and domestic terrorism,
all of the cases we discuss here are considered “international
terrorism” cases per DOJ-NSD classification, although many appear to have
no international link. (See, for example, the Matin Siraj and Fort Dix cases
discussed above.) 18 U.S.C. sec. 2331(1) defines “international
terrorism” as activities that: “(1)(A) involve violent acts or acts
dangerous to human life that are a violation of the criminal laws of the United
States or of any State, or that would be a criminal violation if committed
within the jurisdiction of the United States or of any State; (B) appear to be
intended (i) to intimidate or coerce a civilian population; (ii) to influence
the policy of a government by intimidation or coercion; or (iii) to affect the
conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily outside the territorial jurisdiction of the United States,
or transcend national boundaries in terms of the means by which they are
accomplished, the persons they appear intended to intimidate or coerce, or the
locale in which their perpetrators operate or seek asylum [emphasis
added].” The definition of domestic terrorism is the same, with the
exception that such acts “occur primarily within the territorial
jurisdiction of the United States.” See 18 U.S.C. sec. 2331(5).

[235]
The original statute, 18 USC § 2339A, made it a crime to provide or
conceal “currency or other financial securities, financial services,
lodging, training, safehouses, false documentation or identification,
communications equipment, facilities, weapons, lethal substances, explosives,
personnel, transportation and other physical assets” with the knowledge
or intent that they be used to further an act of terrorism. Violent Crime
Control and Law Enforcement Act, 1994, tit. XII § 120005(a) (§
2339A(a-b)), H. R. 3355, Pub.L. 103-322 (1994).

[236]
Ibid., excepting “humanitarian assistance to persons not directly
involved in such violations.”

[237]
The Violent Crime Control and Law Enforcement Act forbids investigations
initiated based on “expressions of support or the provision of financial
support for the nonviolent political, religious, philosophical, or ideological
goals or beliefs of any person or group.” See ibid.

[240]“USA Patriot Act,” tit. VIII
§§ 810(c) and 810(d), H. R. 3162,
Pub.L. 107-56 (2002); The 2001 version also increased the maximum term
of imprisonment for material support offenses from 10 to 15 years with a
possible life sentence if a death occurs as a result of the support rendered.

[242]
The Intelligence Reform and Terrorism Prevention Act of 2004 amended the
definition of “material support or resources” applying to both
sections, and the meaning of “knowingly” was expanded to require
“knowledge that the organization is a designated terrorist
organization,…that the organization has engaged or engages in terrorist
activity…, or that the organization has engaged or engages in terrorism.”
“Intelligence Reform and Terrorism Prevention Act” tit. VI §
6603(b) (§ 2339A(b)(1)) and (§ 2339B(a)(1)) , Pub.L. 104-458,
118 Stat. 3638 (2004).

[243]
Human Rights Watch joined a brief of amicus curiae in the case, arguing that
purely peaceable activities it conducts could fall within the ambit of the
material support statute. Brief for Human Rights Watch et al. as Amici Curiae
Supporting Humanitarian Law Project, Holder v. Humanitarian Law Project, 561
U.S. 1 (2010) (Nos. 08-1498 and 09-89).

[244]
David Cole, “Terror Financing, Guilt by Association and the Paradigm of
Prevention in the ‘War on Terror’” (Georgetown Public Law and
Legal Theory Research Paper No. 1262792, Georgetown University Law Center,
2008), pp. 234-35.

[245]
Columbia Law School’s Human Rights Institute Interview with Joseph
Ferguson, former prosecutor and co-director of the National Security and Civil
Liberties Program at Loyola University School of Law, Chicago, Illinois,
October 10, 2012.

[249]
“Thus, the relevant USAOs shall have access to information developed in
full field investigations, shall be kept apprised of information necessary to
protect national security, shall be kept apprised of information concerning
crimes, shall receive copies of LHMs or successor summary documents, and shall
have access to FBI files to the same extent as the Criminal Division.”
Memorandum on Intellligence Sharing Procedures for Foreign Counterintelligence
Investigations Conducted by the FBI from John Ashcroft, former attorney
general, US Department of Justice, to Robert Mueller III, former director,
United States Federal Bureau of Investigation, March 6, 2002,
https://www.fas.org/irp/agency/doj/fisa/ag030602.html (accessed June 22, 2014).

[251]
According to a report by the Center on Law and Security, in 2007, material
support charges were brought in only 12 percent of terrorism cases; in 2010,
that number rose to 69 percent and in 2011 88 percent of terrorism cases
involved a material support charge. New York University School of Law, Center
on Law and Security, “Terrorist Trial Report Card: September 11, 2001
– September 11, 2011,” p. 19.

[252]
Meg Laughlin, “In his plea deal, what did Sami Al-Arian admit to?” St.
Petersburg Times, April 23, 2006,
http://www.sptimes.com/2006/04/23/Hillsborough/In_his_plea_deal__wha.shtml
(accessed June 20, 2014). ("There was never any evidence in the trial to
show that Al-Arian or his co-defendants were involved with any violent acts. At
the trial, federal prosecutors presented dozens upon dozens of transcripts of
phone conversations and fax exchanges that Al-Arian had with PIJ leaders before
such communications became illegal in 1995.").

[253]
Eric Lichtblau, “Not Guilty Verdicts in Florida Terror Trial Are Setback
for U.S.,” New York Times, December 7, 2005,
http://www.nytimes.com/2005/12/07/national/nationalspecial3/07verdict.html?pagewanted=all
(accessed June 20, 2014). ("The trial, lasting more than five months,
hinged on the question of whether Mr. Arian's years of work in the Tampa area
in support of Palestinian independence crossed the threshold from protected free
speech and political advocacy to illegal support for terrorists.")

[256]
In May 2006, shortly after his plea agreement was entered, the same prosecutor
who tried the case against Al-Arian in Florida charged him before a grand jury
in Northern Virginia. Gordon Kromberg, the AUSA, was investigating whether
Islamic charities in the area were providing material support to terrorists.
Al-Arian refused to testify on the basis of the content of his plea agreement.
The court held him in civil contempt in November 2006, with the days served for
civil contempt not counting towards his plea agreement sentence. In December
2007, the court lifted the order, and he continued to serve the rest of his
sentence pursuant to the plea agreement. He was subpoenaed again in October
2007 and March 2008. In June 2008, after two separate federal courts held that
the plea agreement did not preclude him from testifying, he was indicted on two
counts of criminal contempt. He was released to house arrest in September 2008.
Motion to Dismiss, United States v. Al-Arian, no. 1:08-cr-00131-LMB (E.D. Va.
June 27, 2014).

[257]
In a January 24, 1995 Executive Order, then-President Bill Clinton declared
Hamas (along with 10 other groups) terrorist organizations under US law. The
order made it a felony to raise, donate, or transfer funds to Hamas and
mandated a freeze on all Hamas’ banking assets in the US. Douglas Jehl,
“Clinton Orders Assets of Suspected Terrorist Groups Frozen,”
New York Times, January 25, 1995, http://www.nytimes.com/1995/01/25/world/clinton-orders-assets-of-suspected-terrorist-groups-frozen.html (accessed
June 20, 2014). On October 8, 1997, the US State Department’s
Counterterrorism Bureau released its first official list of designated Foreign
Terrorist Organizations (FTOs), which designated 21 organizations,
including Hamas, as a FTO. “Foreign Terrorist Organizations,” US
Department of State, Bureau of Counterterrorism terrorism designations press
release, May, 28, 2013, www.state.gov/j/ct/rls/other/des/123085.htm (accessed
June 20, 2014).

[258]
Salah was eventually indicted but acquitted in the US of terrorism-related
charges in 2007 (see section IV).

[259]
Michael Deutsch and Erica Thompson, “Secrets and Lies: The Persecution of
Muhammad Salah (Part I),” Journal of Palestine Studies, vol 37,
no. 4 (2008),
http://www.palestine-studies.org/journals.aspx?id=10022andjid=1andhref=fulltext#
(accessed June 20, 2014). See also, Emily Ratner, “Anonymous Accusers in
the Holy Land: Subverting the Right of Confrontation in the United
States’ Largest Terrorism-Financing Trial,” Loyola Journal of
Public Interest Law, vol. 13, no. 2 (Spring 2012), pp. 582-83. (“During
a 1993 interrogation that he would later say included torture,
Palestinian American businessman Muhammad Salah told agents of the Israeli
Security Agency (Shin Bet) that HLF provided financial support to the
Palestinian militant group Hamas.”)

[267]
David Cole, “Terror Financing, Guilt by Association and the Paradigm of
Prevention in the ‘War on Terror’” (Georgetown Public Law and
Legal Theory Research Paper No. 1262792, Georgetown University Law Center,
2008), p. 238.

[269]
Columbia Law School’s Human Rights Institute and Human Rights Watch
interview with Faisal Hashmi, brother of Fahad Hashmi, New York, June 1, 2012.
“Fahad has been a vocal critical of the United States for a long period
of time, and was intelligent in his approach.”

[271]Laura Rovner and Jeanne Theoharis,
“Preferring Order to Justice,” American University Law Review,
vol. 61 (2012), p. 1347 (citing “Terror Suspect Linked to Al-Qaeda Loses
Extradition Battle,” Daily Mail Online, March 20, 2007,
http://www.dailymail.co.uk/news/article-443477/Terror-suspect-linked-Al-Qaeda-loses-extradition-battle.html
(accessed June 22, 2014)); see also, “American extradited on terror
charges,” CNN, May 26, 2007,
http://www.cnn.com/2007/LAW/05/26/terror.suspect/ (accessed on June 22, 2014)
(quoting FBI Assistant Director, Mark J. Mershon: "If we are engaged in a
war against terror—and we most certainly are—then Syed Hashmi aided
the enemy by supplying military gear to Al-Qaeda.”). DOJ championed his
arrest and eventual conviction as a victory. “U.S. Citizen Pleads Guilty
in Manhattan Federal Court to Conspiring to Provide Material Support to Al
Qaeda,” United States Department of Justice press release, April 27,
2010,
http://www.justice.gov/usao/nys/pressreleases/April10/hashmisyedpleapr.pdf
(accessed June 2, 2014).

[272]Rovner and Theoharis, “Preferring Order to
Justice,” American University Law Review, p. 1347 (citing
“United States Announces First Extradition from United Kingdom on
Terrorism Charges,” US Department of Justice press release, May 26, 2007,
http://www.justice.gov/usao/nys/pressreleases/May07/hashmiextraditionpr.pdf (accessed June 22, 2014)).
(“Mershon added, ‘[i]n a global community, terrorism anywhere is a
threat to people everywhere.’”)

[277]
The government planned to submit excerpts depicting Hashmi at a public
political protest and a meeting of an “Islamic fundamentalist
organization.” Government’s Memorandum In Support of Its Motion to
Admit Certain Evidence at Trial at 1, Hashmi, No. 1:06-cr-00442-LAP
(S.D.N.Y. June 10, 2010). Columbia Law School's Human Rights Institute and Human
Rights Watch interview with Faisal Hashmi, June 1, 2012.

[286]
Columbia Law School's Human Rights Institute email correspondence with Tarek
Mehanna, December 6, 2012. “The conversation then immediately shifted to
biographical inquiries (where I lived, where I attended mosque, how long I had
left in school, etc).”

[287]
Ibid., “The entire time, one agent simply stared at my face, while the
other was asking the questions. They began by holding up photographs and asking
if I recognized those pictured. Regarding one of them, Daniel Maldonado, they
asked about the last time I had spoken to him (this particular question served
as the basis for the false statement charge upon which I was arrested the first
time, in November 2008). The majority of the time was then spent questioning me
about details regarding my trip to Yemen nearly three years prior— who
helped me financially and logistically, who accompanied me, who I met there,
etc. After those questions, he said that they had evidence that I was not telling
the truth, but they could not show me that evidence.”

[288]
Ibid., “They said that they were planning to charge me with crimes of
terrorism and giving false statements to the FBI. However, they were giving me
a choice to do things the easy way, or the hard way (in court). They suggested
I get a lawyer, and that he would tell me what the ‘easy way’
consisted of. I finally did, and it was made clear to me that they wanted me to
become a government informant. They gave me a few days to make my decision, and
I immediately asked my lawyer at the time to tell them that I was not going to
do anything of the sort. I then awaited my arrest.”

[290]
“Massachusetts Man Charged With Conspiracy to Provide Material Support to
Terrorists,” US Department of Justice, Federal Bureau of Investigation
press release, October 21, 2009,
http://www.fbi.gov/boston/press-releases/2009/bs102109a.htm (accessed on June
25, 2014).

[291]
“The defendants conspired and attempted to provide themselves and each
other as personnel in the form of personally participating in terrorist
training and combat.” Government’s Opposition to Defendant’s
Motion to Dismiss Portions of Counts One through Three of The Superceding
Indictment at 5, Mehanna, 669 F. Supp. 2d 160 (No. 09-cr-10017-GAO).

[308]
Ibid., Day 2, p. 85. “Going to the beach means getting to the
battlefield. Getting married means getting actively involved in the fighting,
itself. Getting engaged means essentially committing to getting married, that
is, committing to getting involved with those who can bring you to the
battlefront. Kohlmann can talk about that to you.”

[310]
Trial Transcript Day 2 at 85 and Day 7 at 60, 63, United States v. Boyd, No.
5:09-CR-216-FL (E.D.N.C. Nov. 18, 2013).

[311]
Ibid., Day 10, p. 71. “Writing a note, nope, won't catch this nigga z on
dope. Know how to play the game, kuffar is all one in the same, Jew, Christian
or munafiq, it's gonna drastic, won't catch me on the army's draft list. Rather
be the last draft pick. Sentence me ta life for speaking truth, but I'm serving
a life sentence just for being a youth”; Trial transcript day 10 at 69,
“Yo, remember when I used to be fasiq, the results was drastic. Now I'm
good so feds wanna stretch me like elastic. Kuffar wanna bring us down but they
can't suppress the sound. When were screaming la illaha illah, stompin on the
ground.”

[312]
Ibid., Day 10, p. 81. “Yo, one, two check it. I’m bout to reck it.
So wuzup with nigga Z ... I used to smoke tree. But I don’t do that shit
no more ... Only think I smoke now is fuckin kuffar ...”

[324]Brief for Human Rights Watch, et al. as Amici
Curiae supporting Humanitarian Law Project, Holder v. Humanitarian Law
Project at 34, 561 U.S. 1 (2010) (Nos. 08-1498 and 09-89).
(“Implicit in the government’s arguments below was the proposition
that expressive activity that would otherwise be protected by the First
Amendment becomes unprotected when engaged in with a group that the executive
branch has designated. Under the Court’s well-established precedents,
however, association with a group that engages in unlawful activity cannot be
punished unless it is intended to further the group’s unlawful aims.
Hinging application of the statute on a disfavored association only compounds
the constitutional problem by layering an impermissible restriction on the
right to association upon an impermissible restriction on speech. ‘For
liability to be imposed by reason of association alone, it is necessary to
establish that the group itself possessed unlawful goals and that the
individual held a specific intent to further those illegal aims.’ Claiborne
Hardware, 458 US 898 at 920.”).

[325]
UN Commission on Human Rights, Report of the Special Rapporteur on the
Promotion and Protection of Human Rights and Fundamental Freedoms while
Countering Terrorism Martin Scheinin, A/HRC/6/17/Add.3, Nov. 22, 2007, para 41.

[326] Ibid.ICCPR in
article 14 requires, among other things, a fair and public hearing that
includes the right to examine witnesses, and the right not to be compelled to
testify against oneself.

[328]
ICCPR, arts. 14(1), 14(3)(e), and 14(3)(g). The UN Human Rights Committee has
said that the specific elements of article 14(3) are “minimum guarantees,
the observance of which is not always sufficient to ensure the fairness of a
hearing.” UN Human Rights Committee, General Comment 13, Equality before
the courts and the right to a fair and public hearing by an independent court
established by law (Art. 14) (Twenty-first session, 1984), Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty
Bodies, para. 5.

[329]
UN Human Rights Committee, General Comment 32, Article 14: Right to Equality
Before Courts and Tribunals and To A Fair Trial (Ninetieth session, 2007),
Compilation of General Comments and General Recommendations Adopted by Human
Rights Treaty Bodies, UN Doc. CCPR/C/GC/32 (2007), para. 25. (“Fairness
of proceedings entails the absence of any direct or indirect influence,
pressure or intimidation or intrusion from whatever side and for whatever
motive. A hearing is not fair if, for instance, the defendant in criminal
proceedings is faced with the expression of a hostile attitude from the public
or support for one party in the courtroom that is tolerated by the court,
thereby impinging on the right to defence, or is exposed to other
manifestations of hostility with similar effects.”).

[330]The
ICCPR provides an individual with the right “not to be compelled to
testify against himself or to confess guilt.” This right includes the
right not to have confessions obtained by torture or other cruel, inhuman or
degrading treatment introduced at trial. ICCPR, art. 14(3)(g). The committee
also noted that sometimes torture or other forms of cruel, inhuman or degrading
treatment or punishment (prohibited by article 7 of the ICCPR) are used to
compel the accused to confess or testify against himself, and that “[t]he
law should require the evidence provided by mean of such methods or any other
form of compulsion is wholly unacceptable.” See UN Human Rights
Committee, General Comment 13, para. 14.

[342]
United States v. Salah, No. 1:03-cr-00978-2 (N.D. Ill. July 23, 2007). Salah
had also been placed on a “specially designated terrorist” list by
the Department of Treasury in 1995, pursuant to Israeli proceedings, and was
kept on the list despite his acquittals of terrorism related charges in 2007.
The designation, which as imposed by executive order and without a means to
challenge it, restricted Salah’s ability to work and conduct basic
transactions. Annie Sweeney,“Bridgeview man taken off terrorist
list,” Chicago Tribune, November 7, 2012,­_http://articles.chicagotribune.com/2012-11-07/news/chi-bridgeview-man-taken-off-terrorist-list-20121107_1_bridgeview-man-terrorist-list-support-hamas-extremists
(accessed on June 25, 2014).

[352]
United States v. Abu Ali, 395 F. Supp. 2d 338,373-4 (E.D. Va. 2005). For
example, the judge found that “Mr. Abu Ali’s claim about having
been whipped to the point of having blood on his back seems implausible in
light of certain behaviors that he exhibited in the time frame of June 11
through June 15, 2003—immediately after the alleged whipping—that
do not coincide with how a recently beaten person would behave.” Ibid.,
p. 374.

[359]
The following exchange was between the prosecutor and the FBI employee:
“Q. And what kind of travel were y’all talking about? A. Going over
to the Pakistan/Afghanistan/Iraq region. Q. And then Mr. Mirza says in
reference to that conversation, ‘I hope that I get’
—I’m pronouncing it wrong, I’m sure—
‘Shaheed’? A. Yes. … Q. Can you describe from your
experience, working as an undercover and working within the Muslim community,
what this term meant? A. In my experience, ‘Shaheed’ was,
basically, the blessings that you would get if you lived a proper Muslim life
and went out as a martyr, died as a martyr.” Trial Transcript, vol. 2,
pp. 265-67, United States v. Mirza, No. 4:06-cr-00421-2 (S.D. Tex. Oct. 28,
2010), aff’d, No. 10-2075 (5th Cir. Oct. 25, 2011), cert.
denied, 132 S.Ct. 1725 (2012) (No. H-06-421, 2010 Term; renumbered No.
10-2075, 2011 Term; renumbered No. 11-8595, 2012 Term).Also problematic in this case is the fact that the terrorism-related
conspiracy charge against Mirza related to sending money to the Taliban, not
traveling directly to fight with the Taliban; this conversation does not appear
particularly probative of the conspiracy charge of sending money.

[361]The word “Shaheed”
comes from the root word “Shahadat,” which means
testimony or witness. A core tenet of Islam is the Shahada, in which
Muslims bear witness to the oneness of God and the finality of Muhammed’s
prophecy. A Shaheed is any individual who dies as a witness to his or her
faith. While it does apply to someone who dies fighting defending Islam, the
term Shaheed can also refer to someone who dies as a sacrifice
for the well-being of others, or someone persecuted for religious
reasons.

[371]
Tony Graham, “Jurors see videos taken from defendants, some appear to be
pained,” Philadelphia Inquirer, October 23, 2008,
http://articles.philly.com/2008-10-23/news/25264414_1_video-fort-dix-shain-duke
(accessed June 25, 2014). A more graphic description followed:

Much of the content played
like a jihadist version of MTV or Grand Theft Auto, with fast-cut action,
screeching soundtracks, and heavy use of cartoonish graphics to accompany
fetishistic violence. In addition to the surreptitiously shot sniper footage,
prosecutors played a video tribute to Osama bin Laden, made with the same
aesthetics. There also was video of roadside bomb attacks on US military
Humvees and other vehicles in Iraq. In one, off-camera bombers shout, "Alla
Akbar," which means "God is great," as they detonate the
explosives. Another lengthy video depicted jihadist fighters setting up mortars
and engaging in a nighttime firefight.

[373]
Troy Graham, “Fort Dix Juror: ‘They were going to do
it,’” Philadelphia Inquirer, January 25, 2009,
http://articles.philly.com/2009-01-25/news/25280685_1_juror-fort-dix-split-verdict
(accessed June 25, 2014). (“Juror No. 3 has a son who served two tours
with the Marines in Iraq, where he was wounded by shrapnel and received the
Purple Heart and Bronze Star. One video in particular, called Baghdad Sniper,
was difficult for her to watch, she said. In one scene, a sniper shoots an
American serviceman in the back, the same place her son was wounded. "I
thought I was seeing my son getting hit," she said. Despite the gruesome
footage, she said, the jurors kept their emotions from affecting their
judgment. "These men on trial did not do these things," she said.
"They exposed themselves to that material.”).

[374]
David Kocieniewski, “6 Men Arrested in Terror Plot Against Fort
Dix,” New York Times, June 6, 2013,
http://www.nytimes.com/2007/05/09/us/09plot.html?pagewanted=printand_r=0
(accessed July 6, 2013).

[376]
Under ICCPR, art. 14(3)(g), a defendant has the right not to be compelled to
testify against himself.

[377]“The government is not accusing Mr. Sedaghaty
for being a terrorist,” prosecutor Christopher Cardani said in his
opening statement to the jury. “No terrorism charges. Tax count and a
conspiracy count. There will be lots of evidence related to the whole
atmosphere of violent events overseas but there are no terrorism
charges.” Transcript of Aug. 30, 2010 Trial Proceedings at 6, United
States v. Sedaghty, No. 05-60008-HO, 2011 WL 356315 (D. Or. Aug. 10, 2011), aff’d
in part, rev’d in part, 728 F.3d 885 (9th Cir. 2013).

[380]
Many of the documents were excluded because they had been in Seda’s
possession or found on computers used by one of his employees. District Court Judge
Michael Hogan concluded that Seda would have to testify and lay a foundation
demonstrating he had knowledge of the documents in order for them to be admitted.
Appellant’s Opening Brief at 45, Sedaughty, No. 05-60008-HO, 2011 WL 356315. Transcript
of Pretrial Proceedings at 93, Sedaghty, No.
05-60008-HO, 2011 WL 356315.

[381]The US Attorney for Oregon said in a press release,
“The jury’s verdict demonstrates once again the critical
role—and effectiveness—of civilian criminal courts in the battle
against terrorism.” “Defendant Convicted of Lying About
Funds Bound for Religious Extremist Militants Federal Jury Convicts Leader of
Al-Haramain Islamic Foundation of Two Felonies,” US Department of
Justice, Federal Bureau of Investigation press release, September 10, 2010,
http://www.fbi.gov/portland/press-releases/2010/pd091010.htm (accessed June 25,
2014).

[389]
Yasrebi’s defense memorandum explains: “[T]he government used FISA
wiretaps to listen in on a voluminous number of telephone calls involving Dr.
Yasrebi and others. On multiple occasions, the government also intercepted
mail, faxes, and other communications to or from CF [Child Foundation], Dr.
Yasrebi, and others. And in the middle of the night on December 10, 2006,
government agents covertly entered CF’s offices, copied seven computer
hard drives, rifled through CF’s files, photographed numerous documents,
and left without leaving a trace that they had ever been there.”
Defendant Mehrdad Yasrebi’s Sentencing Memorandum at 12, Yasrebi,
No. 05-CR-004130-KI.

[395]
Ibid.; Defendants’ Amended Joint Motion to Compel Discovery, United
States v. Holy Land Found., 722 F.3d 677 (5th Cir. 2013) (No. 3:04-CR-0240-P) (“At trial, defense
witness Edward Abington, the former United States Consul General in Jerusalem,
testified that he received regular briefings from CIA briefers with access to a
wide range of intelligence and that he was never told that the zakat committees
were part of, or controlled by, Hamas.”) (citing Transcript of Record
vol. 25 at 93-98, Holy Land Found., 722 F.3d 677 (No. 3:04-CR-0240-P)).

[401]
Transcript of Proceedings, Dec. 6, 2011, at 28-7, United States v. Mehanna, 669
F. Supp. 2d 160 (D. Mass. 2011) (No. 1:09-cr-10017-GAO). (Testimony of Evan
Kohlmann: Q. “And you indicated earlier that you’ve never been to
Yemen and you also don’t speak Arabic, correct? A. I don’t speak
Arabic fluently.”). But see, Transcript of Daubert
Proceedings, Aug. 16, 2011, at 54, United States v. Sherifi, 793 F. Supp. 2d
751 (D.N.C. 2011) (No. 5:09-CR-216-FL). (Testimony of Evan Kohlmann: “Q:
You, yourself, which languages do you speak? A: I speak fluently English and
French, and I also speak some Arabic.”)

[402]
Transcript of Proceedings, Dec. 6, 2011 at 28-59, 60, Mehanna, 669
F. Supp. 2d 160 (No. 1:09-10017-GAO). (Testimony of Evan Kohlmann: “Q.
And you’ve indicated that you’ve never done field work in your
career in a country where the native language is Arabic. A. That’s
correct. Yeah; that’s correct.”)

[411]
The Confrontation Clause of the Sixth Amendment to the US Constitution requires
that “in all criminal prosecutions, the accused shall enjoy
the right…to be confronted with the witnesses against him."
See Crawford v. Washington, 541 US 36 (2005). International
law provides for the right to a fair and public hearing, and that the accused
has the right “[t]o examine, or have examined, the witnesses against
him.” ICCPR, art. 14(3)(e). The UN Human Rights Committee considers the
defendant’s right to confront witnesses in the same manner as the
prosecution a necessary component of equal access and equality of arms.
Equality of arms—equal rights for both the defense and prosecution—“is
a key element of human rights protection and serves as a procedural means to
safeguard the rule of law.” UN Human Rights Committee, General Comment
No. 32, para. 2. The defendant is entitled to examine witnesses in the same
manner as the prosecutors. The Human Rights Committee has interpreted this
right “to guarantee to the accused the same legal powers of compelling
the attendance of witnesses and of examining or cross-examining any witnesses
as are available to the prosecution.” UN Human Rights Committee, General
Comment 13, para. 12. While international law requires that trials be public,
the ICCPR does permit closure of portions of trial to the public and media for
national security reasons (the ICCPR also permits closure of trials for reasons
of morals or public order). See ICCPR, art. 14(1). But the provision is about
publicity, not the defendant’s right to be informed of all evidence
against him.

[413]See
UN Human Rights Committee, “Consideration of Reports Submitted by State
Parties under Article 40 of the Covenant, Concluding Observations of the Human
Rights Committee, Netherlands,” CCPR/CO/72/NET, August 27, 2001,
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G01/443/74/PDF/G0144374.pdf?OpenElement
(accessed June 28, 2014), para. 12. The UN Office of the High Commissioner for
Human Rights, in its training materials on fair trials states: “Testimony of
anonymous victims and witnesses during trial is unlawful, but can in
exceptional cases be used in the course of criminal investigations. The
identity of anonymous victims and witnesses must be disclosed in sufficient
time prior to the beginning of the court proceedings to ensure a fair
trial.” United Nations, Human Rights in the Administration of Justice:
A Manual on Human Rights for Judges, Prosecutors and Lawyers, E.02.XIV.3
(New York and Geneva: United Nations Publications, 2003), http://www.ohchr.org/Documents/Publications/training9chapter7en.pdf
(accessed June 28, 2014), p. 291. The international criminal tribunals
and the European Court of Human Rights have not completely ruled out the use of
anonymous witnesses. See, e.g., Rome Statute of the International Criminal
Court (Rome Statute), A/CONF.183/9, July 17, 1998, entered into force July 1,
2002, art. 68(5) (anonymity of a witness where necessary for that
witness’s protection may be permitted so long as “[s]uch measures
are exercised in a manner which is not prejudicial to or inconsistent with the
rights of the accused to a fair and impartial trial”); European Court of
Human Rights, Krasniki v. the Czech Republic, no. 51277/99, 28 February
2006; European Court of Human Rights, Doorson v. the Netherlands, 26
March 1996, Reports of Judgments and Decisions 1996-II.

[417]In
its 2012 annual report to Congress regarding FISA, the Justice Department noted
that in that year the FISC reviewed 1,856 government applications “for
authority to conduct electronic surveillance and/or physical searches for
foreign intelligence purposes.” None of the requests for electronic
surveillance were denied (although 40 were subject to unspecified
modifications). The annual report to Congress does not make clear whether any
requests for physical searches were denied or modified. US Department of
Justice, FISA Annual Reports to Congress: 1979 - 2012,
http://www.fas.org/irp/agency/doj/fisa/index.html#rept (accessed June 26,
2014).

[418]
FISA Amendments Act of 2008, 154 Cong. Rec. H 1707, Title VII Sec. 703(a).
Under the statute a US person is defined by the statue as a US citizen, lawful
permanent resident, a US corporation, or an unincorporated association with a
substantial number of US citizen or permanent resident members. 50 U.S.C.
§ 1801(i).

[426]
FISA originally required that the collection of foreign intelligence
information be “the purpose” of the surveillance, but many courts
interpreted that to mean it must be a “primary” purpose. Scott Glick, “FISA’s Significant Purpose
Requirement and the Government’s Ability to Protect National
Security,” Harvard National Security Journal, vol. 1 (May 2010), http://harvardnsj.org/wp-content/uploads/2010/05/Vol.1_Glick_Final.pdf (accessed June 26, 2014), p. 104.

[429]Glick, “FISA’s Significant Purpose
Requirement,” Harvard National Security Journal, p. 101; In
re Sealed Case, 310 F.3d 717, 735 (FISACR 2002) (“If the
certification of the application’s purpose articulates a broader
objective than criminal prosecution—such as stopping an ongoing
conspiracy—and includes other potential non-prosecutorial responses, the
government meets the statutory test. Of course, if the court concluded that the
government’s sole objective was merely to gain evidence of past criminal
conduct—even foreign intelligence crimes—to punish the agent rather
than halt ongoing espionage or terrorist activity, the application should be denied.”).

[433] 50 U.S.C.
§ 1801(e). (“Foreign intelligence information”
means--(1) information that relates to, and if concerning a United States
person is necessary to, the ability of the United States to protect against--
(A) actual or potential attack or other grave hostile acts of a foreign
power or an agent of a foreign power; (B) sabotage, international
terrorism, or the international proliferation of weapons of mass destruction by
a foreign power or an agent of a foreign power; or (C) clandestine
intelligence activities by an intelligence service or network of a foreign
power or by an agent of a foreign power; or (2) information with respect
to a foreign power or foreign territory that relates to, and if concerning a
United States person is necessary to--(A) the national defense or the
security of the United States; or (B) the conduct of the foreign affairs
of the United States.”)

[435]
Glenn Greenwald and James Ball, “Top Secret Rules That Allow NSA To Use
US Data Without a Warrant,” Guardian, June 20, 2013,
http://www.theguardian.com/world/2013/jun/20/fisa-court-nsa-without-warrant
(accessed June 26, 2014).

[438]
Specifically, this applies when the government plans to use the information
against an “aggrieved person” —defined as “a person who
is the target of an electronic surveillance or any other person whose
communications or activities were subject to electronic surveillance.” 50
U.S.C. § 1801(k).

[441]
The US also collects foreign intelligence information under Executive Order No.
12333, which defines foreign intelligence information even more broadly to
allow for the collection of information merely about the “capabilities,
intentions, or activities of … foreign persons.” Executive Order
No. 12333, sec. 3.5(e), “United States Intelligence Activities,”
signed December 4, 1981; See also, “Presidential Policy Directive
– Signals Intelligence Activities,” White House press release,
January 17, 2014,
http://www.whitehouse.gov/the-press-office/2014/01/17/presidential-policy-directive-signals-intelligence-activities
(accessed June 26, 2014). Little is known about how information collected under
that order is used in criminal cases. The scope and scale of surveillance
taking place under Executive Order 12333 is at the discretion of the president
and thus subject to even less oversight than that taking place under
traditional FISA or the FAA. Ali Watkins, “Most of NSA’s Data
Collection Authorized by Order Ronald Reagan Issued,” McClatchy,
November 21, 2013,
http://www.mcclatchydc.com/2013/11/21/209167/most-of-nsas-data-collection-authorized.html
(accessed June 26, 2014); See also, Mark M. Jaycox, “Three Leaks, Three
Weeks, and What We’ve Learned About the US Government’s Other
Spying Authority: Executive Order 12333,” post to “Deeplinks Blog”
(blog), Electronic Fronteir Foundation, November 5, 2013,
https://www.eff.org/deeplinks/2013/10/three-leaks-three-weeks-and-what-weve-learned-about-governments-other-spying
(accessed June 26, 2014). In July 2014, The Intercept reported that documents
obtained by Snowden indicated previous FISA surveillance of at least five
US-persons, who were never prosecuted. All five were prominent American
Muslims, including the co-founder of the Council on American-Islamic Relations,
Nihad Awad. Gleen Greenwald and Murtaza Hussain, “Meet the Muslim-American
Leaders the FBI and NSA Have Been Spying On,” Intercept, July 9,
2014, https://firstlook.org/theintercept/ (accessed July 11, 2014).

[442]
The use restrictions announced pertained only to continued “bulk”
collection.

[444]
Ibid., section II, note 5. The “use restrictions” are themselves
quite general, namely, that use should be for a permissible general purpose
such as countering various types of security threats, rather than for an
obviously impermissible purpose, such as discrimination.

[449]
The attorney general is required to provide the same notice of intent to use
information obtained pursuant to the FAA as for information obtained pursuant
to FISA. 50 U.S.C. § 1881(e).

[450]
In July 2013, FBI Deputy Director Sean Joyce publicly described warrantless
surveillance of Basaaly Moalin, five months after he and his co-defendants had
been convicted of conspiracy and material support for terrorism, among other
offenses. Moalin’s defense attorney had sought information about
warrantless surveillance, but his motions had been denied. After Joyce’s
statement, the defense filed a motion for a new trial, raising, among other
things, the constitutionality of warrantless surveillance. The defense motion
for a new trial was denied. See United States v. Moalin, No. 10-cr-4246 JM,
2013 WL 6079518 (S.D. Cal. Nov. 18, 2013), amending and superseding No.
10-cr-4246 JM, 2013 WL 6055330 (S.D. Cal. Nov. 14, 2012).

[451]
Charlie Savage, “Door May Open For Challenge To Secret Wiretaps,” New
York Times, October 16, 2013,
http://mobile.nytimes.com/2013/10/17/us/politics/us-legal-shift-may-open-door-for-challenge-to-secret-wiretaps.html
(accessed June 26, 2014).

[453]
It is not clear how many of these cases may also have relied on information
obtained pursuant to the FAA.John Shiffman, Kristina Cooke and Mark Hosenball,
“Insight: FBI relies on secret US surveillance law, records show,” Reuters,
June 18, 2013, http://www.reuters.com/article/2013/06/18/us-usa-security-fisa-insight-idUSBRE95H03220130618
(accessed June 28, 2014).

[455]
“Fourteen Charged with Providing Material Support to Somalia-Based
Terrorist Organization Al-Shabaab: Two Arrested in Minnesota in Connection with
the Charges,” US Department of Justice press release, August 10, 2010,
http://www.justice.gov/opa/pr/2010/August/10-ag-898.html

[459]
Human Rights Watch interview with David Angeli, Portland, Oregon, August 16,
2012. See also, Defendant Mehrdad Yasrebi’s Sentencing Memorandum at 12,
fn 6, United States v. Yasrebi, No. 05-cr-00413-KI (D. Or. Mar. 6, 2012)
(“Defense counsel has not been permitted to see the FISA application
materials, but given that the FISA order was issued, the government apparently
claimed to a FISA court that the requirements for such an
order—including, for example, that ‘the target of the electronic
surveillance [was] a foreign power or an agent of a foreign power,’ and
that ‘a significant purpose of the surveillance [was] to obtain foreign
intelligence information’ that ‘[could not] reasonably be obtained
by normal investigative techniques,’ 50 U.S.C. § 1804(a)(3)(A),
(6)(B)- (C)—were satisfied. Generally speaking, an ‘agent of a
foreign power’ is defined as a person who engages in
intelligence-gathering or acts of terrorism on behalf of a foreign power. See
18 U.S.C. § 1801(b). Defense counsel is unaware of any evidence even
suggesting that Dr. Yasrebi ever engaged in either of those activities.”)

[460]“FBI
investigations and federal grand jury probes focusing on Hamas financing began
to proliferate around the country; all were directly related to Salah’s
statements made to the Shin Bet under torture. Indeed, the tentacles of almost
every known Hamas-related investigation or prosecution in the United States,
including the case against the Holy Land Foundation (the largest Muslim charity
in the United States), lead back to Salah’s coerced confession.”
Michael E. Deutsch and Erica Thompson, “Secrets and Lies: The Persecution
of Muhammad Salah (Part I),” Journal of Palestine Studies, vol.
37, no. 4 (Summer 2008), p. 15.

[461]
The initial electronic surveillance was authorized before amendments to FISA
permitting physical searches as well; the FBI did search Ashqar’s house
in December 1993, though they did so pursuant to Executive Order 12,333, which
permitted certain intelligence activities in accordance with Attorney General
guidelines. United States v. Marzook, 435 F. Supp. 2d 778, 787 (N.D. Ill.
2006).

[482]
18 U.S.C app. 3 § 6(c)(1). Classified
evidence may not be shown to the jury but withheld from the defendant.
“The district court’s admission of the classified versions of the
documents as evidence for consideration by the jury without disclosing the same
versions to Abu Ali . . . was clearly contrary to the rights guaranteed to Abu
Ali by the Confrontation Clause.” US v. Abu Ali, 528 F.3d 210, 253
(4th Cir. 2008).

[483] See, for example,
Jonathan Hafetz, Habeas Corpus after 9/11: Confronting America’s New
Global Detention System (New York: NYU Press, 2011), p. 224. “To help
facilitate this review, courts have ordered disclosure only to members of the
defense team with a security clearance and barred the defendant himself from
seeing the information. This ‘cleared counsel’ solution, however,
presents a problem from a defense perspective. It prevents a defendant from
helping his lawyer assess the relevance of materials, thus impairing a
defendant’s constitutional right to the effective assistance of counsel.
It also can jeopardize a defendant’s constitutional right to
self-representation, since defendants typically lack the security clearance
necessary to review classified information themselves. Furthermore, judges can
evaluate the relevance of materials requested in discovery ex parte,
considering arguments by the government but excluding the defendant and his
counsel from participating.” See also, Ellen Yaroshefsky, “Secret
Evidence Is Slowly Eroding the Adversary System: CIPA and FISA in the
Courts,” Hofstra Law Review, vol. 34 (2006), p. 1067.

[484]
Human Rights Watch interview with District Judge John Tunheim, Minneapolis,
Minnesota, July 23, 2012. Judge Tunheim previously had significant exposure to
classified information, as he served as the chair of the US Assassination
Records Review Board, an independent federal agency in charge of declassifying
the government records on the assassination of John F. Kennedy, from 1994-98.
Tunheim is the current chair of the US Judicial Conference Committee on Court
Administration and Case Management. His experience presiding over cases
involving CIPA prompted him to consider proposing revisions; in particular, he
believes judges should be able to review classified material electronically.

[486]
The government denied one of the defense attorneys security clearance, while
the other attorney did not apply. Columbia Law School’s Human Rights
Institute phone interview with Nina Ginsbert, September 27, 2012.

[488]
In September 2006, then-president Bush announced that Khalid Sheikh Mohammed
and 13 other “high-value” detainees had been transferred to
Guantanamo Bay from overseas detention facilities run by the CIA. Khan and al
Baluchi were among them. “President Bush’s Speech on
Terrorism,” New York Times, September 6, 2006,
http://www.nytimes.com/2006/09/06/washington/06bush_transcript.html?pagewanted=alland_r=0
(accessed June 26, 2014).

[494]
Human Rights Watch interview with Richard Anderson, Dallas, Texas, June 26,
2012. The 86-question survey included
categories of questions covering “Knowledge, Experience, and Beliefs
about Arabic, the Middle East, and Islam” in additional to the usual
biographical questions, and questions about military experience. United
States S v. Smadi, Jury Questionnaire, on file with Human Rights Watch. It also
asked, “What three people do you admire the most? The least?”

[496]
The European Committee on the Prevention of Torture has emphasized that
pretrial solitary should only be imposed “where there is
direct evidence in an individual case that there is a serious risk to the
administration of justice if the prisoner concerned associates with particular
inmates or others in general” and that it should be subject to judicial
review on a “frequent” basis. See European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT),
“The CPT Standards, Substantive Sections of the CPT’s General
Reports,” CPT/Inf/E (2002) 1-Rev. 2004,
http://www.cpt.coe.int/en/documents/eng-standards-prn.pdf (accessed June 29,
2014), para. 57(a).

[498] Solitary
confinement in US prisons is imposed for different reasons, but most commonly
it is used as punishment for breaches of discipline (“disciplinary
segregation”) or to manage prisoners considered to be particularly
difficult or dangerous (“administrative segregation”). Corrections
officials prefer to use terms such as “segregation” rather than
solitary confinement. We consider the terms interchangeable since both refer to
22 to 24 hours a day in cell confinement.

[499] Hashmi
was held at MCC 10-South from May 25, 2007 to on or around April 27, 2010 when
he pleaded guilty to one count of material support of terrorism—t hat is,
for at least three years, ten months, and 20 days. United States v. Hashmi, No.
1:06-cr-00442-LAP (S.D.N.Y. June 10, 2010); Letter in Response to
Defendant’s Motion to Modify Pretrial Confinement Conditions, Hashmi,
No. 1:06-cr-00442-LAP (S.D.N.Y. June 10, 2010).

[502]
Bujol was held in pretrial solitary confinement at the Federal Detention Center
FDC Houston between an October 2010 court hearing and his sentencing in May
2012. Human Rights Watch phone interview with lawyer involved in the Bujol case
(name withheld), June 21, 2012.

[507] Warsame was originally
held as a material witness but, after he refused to cooperate with the
government, he was indicted on material support charges. Position of Defendant with Respect to Sentencing at 1,
7, United States v. Warsame, No. 0:04-cr-00029-JRT-FLM, 2009 WL 2173047 (D.
Minn. filed July 2, 2009).

[518]
Ibid. Attorneys for Fahad Hashmi and Oussama Kassir also described mistreatment
at MCC 10-South, including denial of access to out-of-cell exercise and denial
of phone calls to family for fabricated or exaggerated infractions. See
Columbia Law School’s Human Rights Institute interview with Pardiss
Kebriaei, appellate attorney for Fahad Hashmi, January 28, 2012; Amnesty
International, “USA: Open Letter to Eric H. Holder, Attorney General:
Special Housing Unit in the Metropolitan Correctional Center, New York,”
February 11, 2011,
http://www.amnesty.org/en/library/asset/AMR51/029/2011/en/90d2f93d-4e88-46cc-b4c3-f84da8e0e681/amr510292011en.html
(accessed June 27, 2014). They and other MCC 10-South prisoners have challenged
their conditions of confinement, including those related to SAMs: United States
v. Basciano, 763 F. Supp. 2d 303 (E.D.N.Y. 2011) (ordering defendant’s
release from administrative detention in 10 South); United States v. Bout, 860
F. Supp. 2d 303 (E.D.N.Y. 2012) (granting defendant’s request to be
transferred to general population after 15 months in 10 South); United States
v. Ghailani, 751 F. Supp. 2d 502 (S.D.N.Y. 2010) (considering defendant’s
request to stop body cavity searches at 10 South as a prerequisite to his
attendance at court appearances); Motion for Modification of Pre-trial
Conditions, United States v. Hashmi, No. 1:06-cr-00442-LAP (S.D.N.Y. June 10,
2010); United States v. El-Hage, 213 F.3d 74 (2d Cir. 2000), aff’g No.
1:98-cr-01023-LAK (S.D.N.Y. Jan. 13, 2000) (affirming denial of El Hajj’s
application for substantial modification of his SAMs on the basis of conditions
of confinement).

[522]
Al-Arian was a professor of computer engineering at the University of Southern
Florida who was indicted in February 2003 on charges of supporting Palestinian
Islamic Jihad (PIJ), designated as a foreign terrorist organization, through an
elaborate network of front organizations including schools and charitable
organizations across the United States. Al-Arian was acquitted of several
charges but prosecuted later for criminal contempt. In June 2014, the Justice
Department dropped the contempt charge.

[533]
Aref was detained at Raybrook pretrial in solitary confinement for nearly a
month. After conviction but before his sentencing, he was held in solitary
confinement for 17 months, according to his attorneys. Columbia Law
School’s Human Rights Institute email correspondence with Kathy Manley,
October 18, 2012.

[535]
His lengthy time in the SHU was imposed as administrative segregation, and was
not for disciplinary reasons. Defendant’s Objections to the Presentence
Investigation Report, Position Paper, Commentary on Sentencing Factors, and
Response to the Government’s Sentencing Memorandum, United States v.
Khan, No. 1:10-cr-00240-1 (N.D. Ill. June 8, 2012) (copy on file with Columbia
Law School’s Human Rights Institute).

[544]
While Paracha has sought SAMs memos concerning this period of confinement
through Freedom of Information Act requests, he has not received them. However,
his SAMs extension memo describes the origin of his SAMs and ongoing
justifications. See Memorandum from Matthew W. Friedrich, Acting Assistant
Attorney General, to Harley G. Lappin, director, Bureau of Prisons,
“Extension of Special Administrative Measures (SAM) Pursuant to 28C.F.R. §
501.3 for Federal Prisoner Uzair Paracha” (SAMs extension memo), November
24, 2008; Letter from Uzair Paracha to Human Rights Watch, June 26, 2013.

[549] Under
international human rights law, the “essential aim” of a
penitentiary system should be the “reformation and social
rehabilitation” of prisoners, and sentencing that is solely retributory
is disfavored. See ICCPR, art.10(3) (“The penitentiary system shall
comprise treatment of prisoners the essential aim of which shall be their
reformation and social rehabilitation.”); UN Human Rights Committee,
General Comment 21, Replaces general comment 9 concerning human treatment of
persons deprived of liberty (Art. 10) (Annex VI, B) (Forty-fourth Session,
1992), Compilation of General Comments and General Recommendations Adopted by
Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.9 (Vol.1) (1994), http://ccprcentre.org/doc/ICCPR/General%20Comments/HRI.GEN.1.Rev.9%28Vol.I%29_%28GC21%29_en.pdf
(accessed June 20, 2014), para. 10. (“No penitentiary system should be
only retributory; it should essentially seek the reformation and social
rehabilitation of the prisoner”). Excessive punishment may constitute
cruel, inhuman, or degrading punishment in violation of the ICCPR and the
Convention against Torture, and it may constitute arbitrary deprivation of
liberty in violation of the right to liberty. See
ICCPR, arts. 7 and 9; Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (Convention against Torture), adopted
December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197,
U.N. Doc. A/39/51 (1984), entered into force June 22, 2006, art.16; see also,
Dirk van Zyl Smit and Andrew Ashworth, “Disproportionate Sentences as
Human Right Violations,” Modern Law Review, vol. 67, no. 4 (July
2004), p. 543; Roper v. Simmons, 543 U.S. 551, 572 (2005).

[553]
Congress created the US Sentencing Commission (USSC) in 1984 and authorized it
to promulgate mandatory guidelines, with the aim of reducing “unwarranted
sentencing disparities.” Sentencing Reform Act of 1984, 28 U.S.C. §
991. A 2005 Supreme Court case made the guidelines advisory. United States v.
Booker, 543 US 220 (2005).

[556]
In addition, mandatory minimum sentences require judges to impose specified
minimum prison terms. Created by various federal statutes, mandatory minimum
sentences are typically triggered by aspects of criminal offense conduct or a
defendant’s criminal history, and result in longer sentences.USSC,
“2012 Federal Sentencing Guidelines Manual,”
http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2012/manual-pdf/2012_Guidelines_Manual_Full.pdf,
chapter 1 or 2. Taking into regard criminal history, first-time offenders have
a criminal history level of 1, which increases to 2 to 6 usually depending upon
the number, duration, and nature of previous sentences.Ibid., chapter 4.

[558]
All other independent enhancements set forth in chapter 3 (the
“Adjustments” chapter) of the Guidelines (that is, enhancements
that are not tied to any particular offense, but rather may be applied to any
of them) entail an increase of only 1 to 5 levels. Though some specific
offenses also involve upward adjustments, none exceeds the severity of the
terrorism enhancement since it increases both the offense level increase and
criminal history category assignment. See generally, USSC, “2012 Federal
Sentencing Guidelines Manual,”
http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2012/manual-pdf/2012_Guidelines_Manual_Full.pdf,
chapter 3. All other independent enhancements set forth in chapter 3 (the
“Adjustments” chapter) of the Guidelines entail an increase of only
1 to 5 levels. Though some specific offenses also involve upward adjustments,
none exceeds the severity of the terrorism enhancement since it increases both
the offense level increase and criminal history category assignment.

[561]
This average is based on the years 2007 to 2011, including 2008 when it was
applied only 11 times. Between 2002 and 2006, the adjustment was applied to
between 8 and 13 cases per year, with the exception of 2004 when it applied to
22 cases. Human Rights Watch analysis of United States Sentencing Commission
Federal Sentencing Statistics,
http://www.ussc.gov/Research_and_Statistics/index.cfm (accessed June 29, 2014).

[562] For
example, Stanislas Gregory Meyerhoff, an environmental activist who was charged
with conspiracy to commit arson and destroy an energy facility, faced a
sentence of 70 to 87 months without imprisonment; with the terrorism adjustment
it “leaps to 30 years to life imprisonment.” Defendant’s
Memorandum of Law in Opposition to Application of the Terrorism Enhancement,
United States v. Meyerhoff, No. 6:06-cr-60078 (D. Or. June 2, 2014).

[566]
However, in 2013, the Supreme Court held that in mandatory minimum cases, any
fact that increases a mandatory minimum is an “element” of the
crime that must be submitted to the jury. See Alleyne v. United States, 133
S.Ct. 2151 (2013).

[567]
In Booker v. US, the Supreme Court held that mandatory sentencing
guidelines were unconstitutional where they imposed punishment for conduct without
proof to a jury beyond a reasonable doubt. However, the Court’s remedy
was not to bar the use of non-proven conduct; rather, it was to make the
guidelines advisory. See Booker v. United States, 543 U.S. 220, 243-44 (2005).
See also, United States v. Battle, 499 F.3d 315, 322-23 (4th Cir. 2007)
(“When applying the Guidelines in an advisory manner, the district court
can make factual findings using the preponderance of the evidence
standard.”).

[570]
See Kate Stith, "The Arc of the Pendulum: Judges, Prosecutors, and the
Exercise of Discretion," Yale Law Journal, vol. 117 (2008), p. 1479
(noting that where prosecutors do not have to have prove the facts that are the
basis for enhancements, they have less incentive to exercise discretion by
agreeing to a plea and sentence bargain more favorable to defendants); James P.
McLoughlin, "Deconstructing United States Sentencing Guidelines Section
3A1.4: Sentencing Failure in Cases of Financial Support for Foreign Terrorist
Organizations," Law and Inequality, vol. 28, no. 1 (2010), p. 93
(the enhancements give prosecutors "overwhelming leverage" over
defendants). Human Rights Watch has previously reported on how prosecutors use
the threat of sentencing enhancements to obtain pleas. See Human Rights Watch, An
Offer You Can't Refuse.

[571]
See USSC, “Appendix C (Volume I) - Amendments to the Guidelines
Manual,” November 1, 2003, http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2011/manual-pdf/Appendix_C_Vol_I.pdf
(accessed June 26, 2014), amendment 526; Violent Crime Control and Law
Enforcement Act of 1994, Pub.L. 103-322 (1994), sec. 120004 (“The United States Sentencing Commission is directed to
amend its sentencing guidelines to provide an appropriate enhancement for any
felony, whether committed within or outside the United States, that involves or
is intended to promote international terrorism, unless such involvement or
intent is itself an element of the crime.”). Prior to 1994, the Sentencing Guidelines did not
include an enhancement for conduct relating to terrorism offenses. Instead, the
Guidelines included a policy statement that provided: “If the defendant
committed the offense in furtherance of a terroristic action, the court may
increase the sentence above the authorized guideline range.” See
USSC, “1994 Federal Sentencing Guidelines Manual,” November 1,
1994,
http://www.ussc.gov/guidelines-manual/1994-federal-sentencing-guidelines-manual
(accessed June 26, 2014), § 5K2.15.

[572]
See USSC, “Appendix C (Volume I) - Amendments to the Guidelines
Manual,” http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2011/manual-pdf/Appendix_C_Vol_I.pdf,
amendment 539; Antiterrorism and Effective Death
Penalty Act of 1996, Pub.L. p. 104-132, sec. 730 (“The United
States Sentencing Commission shall forthwith, in accordance with the procedures
set forth in section 21(a) of the Sentencing Act of 1987, as though the
authority under that section had not expired, amend the sentencing guidelines
so that the chapter 3 adjustment relating to international terrorism only
applies to Federal crimes of terrorism, as defined in section 2332b(g) of title
18, United States Code.”); 18 U.S.C. Ch. 113B (defining “federal
crime of terrorism”); see also, 18 U.S.C. § 2332B(g)(5) (defining
other offenses as federal crimes of terrorism when those acts are
“calculated to influence or affect the conduct of government by
intimidation or coercion, or to retaliate against government conduct”).

[574]
USSC, “2012 Federal Sentencing Guidelines Manual,”
http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2012/manual-pdf/2012_Guidelines_Manual_Full.pdf,
§§2A1.2, 2M5.3. The base offense level for second-degree murder is
38. The base offense level for providing material support to a foreign
terrorist organization is 26 and with the terrorism enhancement, becomes 38.
Instead of starting in a potential range of 63 to 78 months, the terrorism
enhancement automatically placed him within a base range (not taking into account
another form of upward departure) of 235 to 293 months. Ibid., p. 394
(Sentencing Table).

[575] The
judge speculated that Benkahla “may have been motivated out of a desire
not to be seen as involved with illegal activities” or “have been
concerned about potential hardship he might cause others.”United States v. Benkahla, 501 F.Supp.2d 748, 751,
759-61 (E.D. Va. 2007), aff’d, 500 F.3d 300 (4th Cir. 2008).

[581]
Since 2006, courts have applied the terrorism adjustment to 28 attempt or
conspiracy to murder cases, compared to just eight cases of first-degree
murder, compared according to statistics we calculated based on information
publicly available on the US Sentencing Commission website. See USSC Research
and Federal Sentencing Statistics,
http://www.ussc.gov/Research_and_Statistics/index.cfm (accessed June 28, 2014).

[582] The
Arabic-speaking informant, Mahmoud Omar, testified at trial that two of the
brothers “have nothing to do with the matter,” that is, that they
had no knowledge of any plot. Trial Transcript at 3289, United States v.
Shnewer, No. 1:07-cr-00459-RBK (D.N.J. Apr. 29, 2009), aff’d in part,
rev’d in partsub nom. United States v. Duka, 671 F.3d 329 (3d
Cir. 2011) (No. 09-2292, 09-2299, 09-2300, 09-2301, 09-2302).

[583] The base
offense level for conspiracy to commit murder is 33, and the resulting sentence
could have been anywhere from 135 months, with the lowest criminal history
category, to 293 months with the highest criminal history category. Due to the
terrorism adjustment, the Duka brothers’ criminal history category levels
were raised to the highest criminal history category level and the offense
level was raised 12 levels, to the highest level of 43, the same base offense
level as first degree murder. See USSC, “2012 Federal Sentencing
Guidelines Manual,”
http://www.ussc.gov/sites/default/files/pdf/guidelines-manual/2012/manual-pdf/2012_Guidelines_Manual_Full.pdf,
p. 394 (Sentencing Table).

[585] Then-FBI
Director Robert Mueller repeatedly described prisons as “fertile ground
for extremists” in 2005 and 2006. See Robert S. Mueller III, Director,
Federal Bureau of Investigation, statement before the Senate Committee on
Homeland Security and Governmental Affairs, Washington, DC, September 19, 2012,
transcript at http://www.fbi.gov/news/testimony/homeland-threats-and-agency-responses
(accessed July 11,2014), p. 24; Robert S Mueller III, Director, Federal Bureau
of Investigation, speech at the City Club of Cleveland, Cleveland, Ohio, June
23, 2006, transcript at
http://www.fbi.gov/news/speeches/the-threat-of-homegrown-terrorism (accessed
June 27, 2014). Beginning in 2003, scholarship and government reports suggested
Al-Qaeda was seeking to recruit American converts to plan terrorist attacks
from prison. See, e.g., John S. Pistole, Assistant Director, Federal Bureau of Investigation,
statement before the Senate Judiciary Committee, Subcommittee on Terrorism,
Technology, and Homeland Security, Washington, DC, October 14, 2003, transcript
at
http://www.fbi.gov/news/testimony/terrorist-recruitment-in-prisons-and-the-recent-arrests-related-to-guantanamo-bay-detainees
(accessed June 27, 2014). A growing literature now characterizes prisoner
radicalization in hyperbolic terms—as “a threat of unknown
magnitude” and “a problem unlike any other faced by correctional
administrators today, or at any other time in history” —which the
government has repeated or alluded to in defending its detention policies. See
George Washington University Homeland Security Policy Institute and University
of Virginia Critical Incident Analysis Group, “Out of the Shadows:
Getting Ahead of Prisoner Radicalization,” September 2006,
http://www.investigativeproject.org/documents/testimony/345.pdf (accessed June
27, 2014), p. i; Mark S. Hamm, “Terrorist Recruitment in American
Correctional Institutions: An Exploratory Study of Non-Traditional Faith Groups
Final Report,” December 2007,
https://www.ncjrs.gov/pdffiles1/nij/grants/220957.pdf (accessed June 27, 2014),
p. 111. In litigation regarding bans on group Islamic prayer, the government
has cited both reports. See Lindh v. Warden, No. 2:09-cv-00215-JMS-MJD (S.D.
Ind. Jan. 11, 2013).

[586]
As Human Rights Watch previously reported, such restrictions have also been
implemented on a piecemeal basis, including when the federal government
detained approximately 1,200 individuals as "special interest"
detainees immediately following September 11, and also the detention of
approximately 70 or more individuals under the material witness statute. In
both cases, Human Rights Watch documented harsh restrictions and conditions of
confinement, all for individuals who were not charged with any crime. Human
Rights Watch, Presumption of Guilt; Human Rights Watch, Witness to
Abuse.

[587] See US Department of
Justice, “Fact Sheet: Security at the Department of Justice Bureau of
Prisons Administrative Maximum Security Facility,” February 21, 2007,
http://www.justice.gov/opa/pr/2007/February/07_opa_104.html (accessed June 27,
2014).

[589] See
generally, US Department of Justice, Office of the Inspector General,
Evaluation and Inspections Division, “The Federal Bureau of
Prisons’ Monitoring of Mail for High Risk Inmates,” September 2006,
http://www.justice.gov/oig/reports/BOP/e0609/final.pdf (accessed June 27,
2014).

[591] In
2013, the Bureau of Prisons confirmed that it plans to convert Thomson
Correctional Institution in Thomson, Illinois—a former state facility
purchased by the federal government—at least in part into a new
administrative maximum. See James Ridgeway and Jean Casella, “Welcome to
the New Federal Supermax,” Mother Jones, February 11, 2013,
http://www.motherjones.com/politics/2013/02/thompson-federal-supermax-solitary-illinois-dick-durbin
(accessed June 27, 2014).

[592]
Solitary confinement in general has a long history, and Human Rights Watch has
done extensive research on the isolated—and solitary—confinement of
adults and juveniles. See, for example: Human Rights Watch, Growing Up
Locked Down: Youth in Solitary Confinement in Jails and Prisons Across the
United States (New York: Human Rights Watch, 2012),
http://www.hrw.org/sites/default/files/reports/us1012ForUpload.pdf; Written
Statement from Human Rights Watch to the Senate Committee on the Judiciary,
Subcommittee on the Constitution, Civil Rights, and Human Rights, “US:
Look Critically at Widespread Use of Solitary Confinement,” June 18,
2012,
http://www.hrw.org/news/2012/06/18/us-look-critically-widespread-use-solitary-confinement.

[593]
Jail and prison officials do not generally use the term “solitary
confinement” to refer to the range of segregation and isolation practices
they employ to manage inmates. They are correct in noting that conditions are
not exactly like those used in the earliest facilities to employ the practice.
But because the conditions and effects of various segregation practices are
substantially the same, Human Rights Watch uses a single definition based on
the degree of deprivation. At the same time, this report’s focus on solitary
confinement should not be read to endorse segregation and isolation practices
that do not fit this definition. Any use of physical and social isolation,
including those of shorter duration, can raise serious human rights concerns.
The same is true for the practice of holding two inmates in conditions that
would otherwise constitute solitary confinement (Human Rights Watch and mental
health professionals have raised serious concerns about this practice). UN
Generaly Assembly, Interim report of the Special Rapporteur of the Human Rights
Council on torture and other cruel, inhuman or degrading treatment or
punishment, Juan E. Méndez, A/66/268, August 5, 2011,
http://solitaryconfinement.org/uploads/SpecRapTortureAug2011.pdf (accessed June
28, 2014).

[594]
The UN Special Rapporteur on Torture has defined solitary confined to be
prolonged when it exceeds 15 days. He reported that he is “aware of the
arbitrary nature of the effort to establish a moment in time which an already
harmful regime becomes prolonged and therefore unacceptably painful …
[and] concludes that 15 days is the limit between solitary confinement and
prolonged solitary confinement because at that point, according to the
literature surveyed, some of the harmful psychological effects of isolation can
become irreversible” (citing Ken Strutin, “Solitary
Confinement,” LLRX.com, August 10, 2010). Ibid., para. 26.

[595]We documented the cases of eight individuals who
spent at least a year in post-conviction solitary confinement, all at ADX
Florence. Some of them were eventually transferred to medium or low-security
facilities. See Appendix - B. We were unable to document conditions of some
prisoners who are held in solitary confinement and whose cases we otherwise
reviewed, in part because the Bureau of Prisons denied our visit requests. We
also reviewed the cases of prisoners who experienced solitary for shorter
periods, sometimes in “holdover status” in transit to a prison or
for disciplinary reasons, but we do not include them in this analysis.

[596]
Studies have found that numerous adults who have no history of mental health
problems develop psychological symptoms in solitary confinement. While many of
those studies are open to questions about the mental health status of
individuals before entering solitary confinement, there is agreement that
solitary confinement can cause or exacerbate mental health problems. For a
discussion, see Human Rights Watch, Growing Up Locked Down, p. 23. Many
defendants we spoke to or corresponded with reported little direct emotional
suffering, saying that their religious faith and practice sustained them,
though some described the mental suffering of other inmates. Some scholars
believe that prisoners tend to underreport or play down their mental health
problems, perhaps out of belief that such confinement is an overt attempt by
prison authorities to “break them down” psychologically. See Sharon
Shalev, A Sourcebook on Solitary Confinement (London: Mannheim Centre
for Criminology, London School of Economics, 2008), www.solitaryconfinement.org/sourcebook
(accessed June 27, 2014), p. 12; Stuart Grassian, “Psychiatric Effects of
Solitary Confinement,” Washington University Journal of Law and Policy,
vol. 22 (2006), http://law.wustl.edu/journal/22/p325grassian.pdf (accessed June
27, 2014), p. 333.

[598]
John M. Vanyur, Assistant Director, Correctional Programs Division, Bureau of
Prisons, statement before the Subcommittee on Intelligence, Information
Sharing, and Terrorism Risk Assessment, Committee on Homeland Security, United
States House of Representatives concerning “Radicalization, Information
Sharing and Community Outreach: Protecting the Homeland from Homegrown Terror,”
Washington, DC, April 5, 2007, transcript at
http://www.investigativeproject.org/documents/testimony/283.pdf (accessed June
27, 2014).

[599]
In July 2013, we used the Bureau of Prisons' inmate locator to determine the
placement of 494 defendants convicted of terrorism or terrorism-related
offenses according to the Department of Justice. One hundred and thirty seven
of them were, at the time, held in Bureau of Prisons facilities; 143 had been
released, were not in Bureau of Prisons custody, or were in transit. Nearly
thirty percent of those in Bureau of Prisons facilities were held at the CMUs
or ADX Florence (15 at Terre Haute FCI; 9 at Marion USP; and 13 at ADX
Florence).

[600] Bureau
of Prisons documents obtained from Freedom of Information Act requests made by Human
Rights Watch on August 24, 2012 (on file with Human Rights Watch); See US
Government Accountability Office, “Guantánamo Bay Detainees:
Facilities and Factors for Consideration if Detainees Were Brought to the
United States” (report no. GAO-13-31, submitted to the Chairman, Select
Committee on Intelligence, US Sentate, November 2012),
http://www.gao.gov/products/GAO-13-31 (accessed July 2, 2014), p. 40.

[602]There are nine units within ADX, divided into six
security levels: the Control Unit (or “Bravo” Unit); the
disciplinary Special Housing Unit (also called “Zulu” Unit, the
“SHU,” or the “Hole”); the so-called “Range
13” unit where prisoners have virtually no human contact; four so-called
“General Population” Units (“Delta,”
“Echo,” “Fox,” and “Golf” Units); the
Special Security Unit (for prisoners under SAMs); and two units
(“J” Unit and “K” Unit) for prisoners in the Step Down
program described later in this section. ECHR, Babar Ahmad and Others v. the U.K., nos. 24027/07,
11949/08, 36742/08, 66911/09 and 67354/09, § 83, 10 April 2012; see also, Complaint,
Cunningham v. Fed. Bureau of Prisons, No. 1:12-cv-01570 (D. Colo. filed June
18, 2012) (describing conditions at each unit). Here, we describe conditions
typical for prisoners in the General Population and Special Security Units,
where many individuals convicted of terrorism or terrorism-related offenses are
held.

[603] No
defense lawyers or inmates we spoke to complained of harassment by correctional
staff at ADX, in contrast to reports we heard about other prisons in which
inmates convicted of terrorism or terrorism-related offenses are held.

[606]
See Plaintiff’s Response to Defendants’ Motion for Summary
Judgment, Ayyad, No. 05-cv-02342 (D. Colo. filed Jan. 9, 2012).
Columbia Law School’s Human Rights Institute phone interview with Pardiss
Kebriaei, staff attorney, Center for Constitutional Rights, January 28, 2012. A
2012 European Court of Human Rights ruling upheld the extradition of prisoners
to the United States despite the risk of their placement at ADX, finding the
isolation suffered by ADX prisoners was “partial and relative,”
because they could communicate with each other through “the ventilation
system” and during recreation periods. ECHR, Babar Ahmad and
Others v. the U.K., nos. 24027/07, 11949/08, 36742/08, 66911/09 and
67354/09, § 222, 10 April 2012.

[607]
In June 2013, Dritan Duka was transferred from ADX General Population to
ADX’s J Unit, the first phase of the Step Down program described below.
Although provided greater phone and visitation privileges, he remains in
solitary confinement. Columbia Law School’s Human Rights Institute and
Human Rights Watch interview with Dritan Duka, July 19, 2012.

[609]
Another prisoner, who was held at ADX for several years, described screaming
through sink drain pipes and wrote that in some units that have two sets of
doors, prisoners would “shout or scream on tops of their
lungs…trying to get their voices across the second solid door.”
Columbia Law School’s Human Rights Institute email correspondence with
Shah Wali Khan Amin (self-identified as Osama Haidar Turkistani), July 22,
2013.

[613]
Bureau of Prisons documents obtained from Freedom of Information Act requests
made by Human Rights Watch on August 24, 2012 (on file with Human Rights
Watch). However, a government report describes only 44 such prisoners. See US
Government Accountability Office, “Guantánamo Bay Detainees:
Facilities and Factors for Consideration if Detainees Were Brought to the
United States” (report no. GAO-13-31, submitted to the Chairman, Select
Committee on Intelligence, US Sentate, November 2012),
http://www.gao.gov/products/GAO-13-31 (accessed July 2, 2014), p. 43.

[615]
US Department of Justice, Federal Bureau of Prisons, Counter Terrorism Unit,
“Inmates Housed in a Communication Management Unit,” updated
November 25, 2013 . As of November 25, 2013, 47 of the 94 prisoners at Marion
and Terre Haute were Muslim (23 of 47 at Marion, and 24 of 47 at Terre Haute).
Bureau of Prisons documents obtained from Freedom of Information Act requests
made by Human Rights Watch on August 24, 2012 and received January 31, 2014 (on
file with Human Rights Watch).

[619]
Terre Haute CMU is a former federal death row unit and Marion CMU was the
Secure Housing Unit of a US penitentiary that closed in 2005.

[620]
Columbia Law School’s Human Rights Institute interview with Avon Twitty,
Washington, DC, September 20, 2013 (quoted); Letter from Eljvir Duka to
Columbia Law School’s Human Rights Institute and Human Rights Watch,
November 6, 2012. According to family members of Sabri Benkahla, flooding was
so severe that Benkahla had to roll up his mattress during rainstorms to keep
it from getting wet. Human Rights Watch Interview with Anthony Benkahla and
Souhail Benkahla, Falls Church, Virginia, August 1, 2012.

[627]
The Bureau of Prison’s policy is to “provide inmates of all faith
groups with reasonable and equitable opportunities to pursue religious beliefs
and practices, within the constraints of budgetary limitations and consistent
with the security and orderly running of the institution and Bureau of
Prisons.” Bureau of Prisons Program Statement, “Religious Beliefs
and Practices,” no. P5360.09, December 31, 2004, http://www.bop.gov/policy/progstat/5360_009.pdf
(accessed July 3, 2014). At the Marion CMU, inmates reported being denied halal
food items for their Eid Al Adha holiday or on their commissary list, although
Jewish inmates may purchase items from a Passover list, and a Christmas list
includes special items for purchase. Email from Mufid Abdulqader to his
attorney, April 25, 2012 (on file with Human Rights Watch). One inmate at Terre
Haute CMU told us that MP3 players are permitted in the CMU and that while
Islamic songs and recitations are banned, there are six Christian genres
available. Letter from Eljvir Duka to Columbia Law School’s Human Rights
Institute and Human Rights Watch, November 6, 2012. Since June 2007, Terre
Haute CMU has banned group prayer other than jummah service (Friday
congregational prayer), arguing that “extremist inmates could use the
religious services to radicalize and recruit other inmates.”Declaration
of Harvey G. Church, Associate Warden, Federal Correctional Center Terre Haute,
¶ 14, Lindh v. Warden, Fed. Correctional Inst., Terre Haute, Ind., no.
2:09-cv-00215-JMS-MJD, 2013 WL 139699 (S.D. Ind. Jan. 11, 2013). In January
2013, a federal district court found that the ban violated federal law by
imposing a substantial burden on religious exercise. The court found that the
ban violated the Religious Freedom Restoration Act of 1993, 42 U.S.C. §
2000bb-1, by imposing a substantial burden on religious exercise by inmate John
Walker Lindh, and because the government failed to establish either a
compelling government interest or that the ban was the least restrictive means
of furthering that interest. Facts and Conclusions of Law, Lindh, no.
2:09-cv-00215-JMS-MJD (S.D. Ind. Jan. 11, 2013).

[628]
Mufid Abdulqader, a defendant in the Holy Land Foundation case who is currently
serving a 20-year sentence at the Marion CMU said that an email he wrote that
cost him $20 (the Bureau of Prisons charges inmates 5 cents a minute to read,
write and review emails) was pending for two weeks before the Bureau of Prisons
Counterterrorism Unit rejected it without providing a reason. He described the
email as mainly about “my own story of what happened to me at the time of
my arrest before my trial and the extreme hardship my family and I suffered
thru it.” Email from Mufid Abdulqader to his attorney, May 10, 2012 (on
file with Human Rights Watch). Abdulqader is pursuing an administrative remedy
and appeal regarding the rejection of his email.

[633]
Bureau of Prisons documents obtained from Freedom of Information Act requests
made by Human Rights Watch on August 24, 2012 (on file with Human Rights
Watch). Due to extensive redactions, we could not determine the identity of the
prisoners about whom we were given information. We received 22 sets of
documents about prisoners, consisting of modification or extension orders. Two
of the documents were only modification orders, creating uncertainty about
whether they pertained to distinct individuals.

[634]
US Department of Justice, Bureau of Prisons, “National
Security; Prevention of Acts of Violence and Terrorism, Supplementary
Information,” 66 FR 55062-66 (October 31, 2001) (codified as 28 C.F.R.
§ 501.2 and § 501.3). Both regulations were introduced in the
mid-1990s, according to some observers, in response to the 1993 World Trade
Center bombing and 1995 Oklahoma City bombing, and they were finalized in June
1997. See US Department of Justice, Bureau of Prisons, “Scope of Rules:
National Security; Prevention of Acts of Violence and Terrorism,” 62 Fed.
Reg. 33730-32 (June 20,1997), http://www.gpo.gov/fdsys/pkg/FR-1997-06-20/pdf/97-16208.pdf
(accessed June 27, 2014) OR US Department of Justice, Bureau of Prisons, “National Security; Prevention of Acts of
Violence and Terrorism, Supplementary Information,” 66 FR 55062 (October
31, 2001), http://www.gpo.gov/fdsys/pkg/FR-2001-10-31/pdf/01-27472.pdf
(accessed June 27, 2014) (codified as 28 C.F.R. § 501.2 and § 501.3).
The timing of the initial introduction of the regulations, particularly the
National Security rule, coincides with the arrest of Ramzi Yousef, one of the
masterminds of the March 1995World Trade Center bombing—though SAMs were
only imposed on him beginning in February 1998. See Yousef v. Reno, 254 F.3d
1214, 1216 (10th Cir. 2001); American Civil Liberties Union, “Actions for
Restoring America: Transition Recommendations for President-Elect Barack
Obama,” (paper presented to President Barack Obama, December 15, 2008),
http://www.aclu.org/files/images/asset_upload_file734_37256.pdf (accessed July
3, 2014).

[635]
28 C.F.R. § 501.2(a) and §501.3(a). The National Security rule
permits the government to impose SAMs that are “reasonably necessary to
prevent disclosure of classified information” upon written certification
from the head of a US intelligence agency that unauthorized disclosure of the
information would “pose a threat to the national security” and that
there “is a danger that the inmate will disclose such information.”
28 C.F.R. § 501.2 (1997; 2007). The Terrorism rule permits SAMs that are
“reasonably necessary to protect persons against the risk of death or personal
bodily injury” to be imposed upon written notification by the Attorney
General or another government official. 28 C.F.R. § 501.3 (1997; 2007).
The regulation appears to permit certification, at the Attorney General’s
direction, by the head of a federal law enforcement agency or member agency of
the intelligence community. In a letter to Human Rights Watch, the DOJ stated
that all SAMs under the terrorism rule must be authorized by the DOJ, but the
Bureau of Prisons may be informed of SAMs by the head of a federal law
enforcement agency, or the head of a member agency of the intelligence
community. Reply Letter from National Security Division, Department of Justice
to Human Rights Watch, May 23, 2013 (on file with Human Rights Watch).The
attorney general can issue SAMs upon a finding that “there is a
substantial risk that a prisoner’s communications with persons could
result in death or serious bodily injury to persons, or substantial damage to
property that would entail the risk of death or serious bodily injury to
persons.” Ibid.

[638] Reply
Letter from National Security Division, Department of Justice to Human Rights
Watch, May 23, 2013 (on file with Human Rights Watch); Letter from the
Permanent Mission of the United States to the UN Office of the High
Commissioner of Human Rights and Juan Mendez, Special Rapporteur on torture and
other cruel, inhuman or degrading treatment or punishment, February 23, 2012
(reporting there were 45 prisoners under SAMs as of February 2012); See “Fact Sheet: Prosecuting and Detaining Terror Suspects in
the U.S. Criminal Justice System,” US Department of Justice press
release, June 9, 2009, http://www.justice.gov/opa/pr/2009/June/09-ag-564.html
(accessed July 3, 2014) (reporting that as
of June 2009, there were 44 inmates subject to SAMs, 29 were incarcerated on
“terrorism-related charges,” 11 on “violent crime
crime-related charges (gangs, organized crime, etc.),” and four on
espionage charges); “Fact Sheet: Security at the Department of Justice Bureau of
Prisons Administrative Maximum Security Facility,” US Department of
Justice press release, February 21, 2007,
http://www.justice.gov/opa/pr/2007/February/07_opa_104.html (accessed July 3,
2014) (reporting that 33 of its 213 “terrorist inmates” were
subject to Special Administrative Measures); Michael Chertoff, Assistant
Attorney General, statement before the Senate Committee of the Judiciary
hearing “DOJ Oversight: Preserving Our Freedoms While Defending Against
Terrorism,” Washington, DC, November 28, 2001,
http://www.gpo.gov/fdsys/pkg/CHRG-107shrg81998/pdf/CHRG-107shrg81998.pdf
(accessed July 3, 2014), p. 14 (describing 16 prisoners under SAMs).

[642]
In most of the orders we reviewed, the SAMs also provided that SAM prisoners
were only permitted to speak with other SAMs prisoners at “designated
times,” in monitored or recorded sessions where no physical touching was
allowed. Bureau of Prisons documents related to SAMs obtained on November 21,
2013 from Freedom of Information Act requests made by Human Rights Watch on
August 24, 2012 (on file with Human Rights Watch); Letter from Wilson Moorer to
Columbia Law School’s Human Rights Institute and Human Rights Watch,
“Re: Request for Information, FOIA Request No. 2012-11904,”
November 21, 2013 (on file with Human Rights Watch) (stating that SAMs
prisoners are permitted to communicate “with other SAM inmates verbally
and/or physically as well, during certain designated times”).

[644]
Memorandum of Law in Support of Defendant Kassir’s Motion to Lift the
Special Administrative Measures that Have Been Imposed on Him, United States v.
Mustafa, No. S2 04 CR. 356, 2008 WL 8888942 (S.D.N.Y. May 19, 2008).

[645]
Memorandum of Law in Support of Defendant Kassir’s Motion to Lift the
Special Administrative Measures that Have Been Imposed on Him, Exhibit A ¶
9(a), Mustafa, No. S2 04 CR. 356, 2008 WL 8888942.

[646]
In the SAMs documentation we obtained through FOIA, nearly all of the SAMs
modification and extension orders stated that the prisoner “shall have
access to materials determined not to facilitate criminal activity or be
detrimental to national security.” Fahad Hashmi’s experience of
physical and social isolation was heightened by prohibitions on his listening
to television or radio news, and a 30-day delay on receiving newspapers.
Memorandum of Law in Support of Mr. Hashmi’s Motion for Modification of
Pretrial Conditions of Detentions and Accompanying Order from Acting Agent
Matthew W. Friedrich to Director of Federal Bureau of Prisons Harry G. Lappin,
extending SAMs for Syed Hashmi at 3, United States v. Hashmi, No. 1:06-cr-00442-LAP
(S.D.N.Y. June 10, 2010); “Rights Groups Issue Open Letter on Upcoming
NYC Trial of Syed Fahad Hashmi and Severe Special Administrative
Measures,” Center for Constitutional Rights press release, April 23,
2010, http://ccrjustice.org/newsroom/press-releases/rights-groups-issue-open-letter-upcoming-nyc-trial-syed-fahad-hashmi-and-sev
(accessed July 3, 2014).

[647] Prison officials twice denied Abu Ali access to the
books, but in November 2008 decided to permit them. See “Al-Qaida inmate
gets access to Obama’s books,” Associated Press, July 10,
2009,
http://www.nbcnews.com/id/31854575/ns/us_news-security/t/al-qaida-inmate-gets-access-obamas-books/
(accessed June 27, 2014). Mohamed Rashed Al-Owhali, a prisoner under SAMs at
ADX Florence, challenged the Bureau of Prisons’ denial of Jimmy Carter’s
book Palestine: Peace Not Apartheid; though a court dismissed the complaint
because he failed to provide more information, it wrote: “We cannot imagine how this
book could have raised safety concerns or facilitated terroristactivity.” Al-Owhali v. Holder, 687 F.3d 1236,
1243 (10th Cir. 2012).Kassir was permitted to receive a newspaper
“heavily censored” to remove international news, but only at least
30 days after its publication date. Defendant’s Sentencing Memorandum at
4, United States v. Kassir, No. 1:04-cr-00356-KBF-3, 2009 WL 3149523 (S.D.N.Y.
Aug. 28, 2009).

[648]
Bureau of Prisons documents related to SAMs obtained on November 21, 2013 from Freedom
of Information Act requests made by Human Rights Watch on August 24, 2012 (on
file with Human Rights Watch). These restrictions likely relate to required
monitoring of communications, see above.

[649]Reply Letter
from National Security Division, Department of Justice, to Human Rights Watch,
May 23, 2013 (see Appendix – E); Letter from the Permanent Mission of the
United States to the UN Office of the High Commissioner of Human Rights and
Juan Mendez, Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, February 23, 2012. The government also
contends that SAMs are based on“an appropriate
balancing of the interests of the individual inmates and of the public
interest.” See “National
Security; Prevention of Acts of Violence and Terrorism, Supplementary
Information,” 66 FR 55062 (October 31, 2001). See also, United States v. Reid, 214
F.Supp.2d 84, 92 (D. Mass. 2002) (describing SAMs as “prisoner specific;
that is, each prisoner upon whom SAMs are imposed has a set of SAMs issued for
him, and him alone, based on the circumstances of his case”).

[650]
Bureau of Prisons documents related to SAMs obtained on November 21, 2013 from Freedom
of Information Act requests made by Human Rights Watch on August 24, 2012 (on
file with Human Rights Watch).

[658]
The rule permits “the monitoring or review of communications between that
inmate and attorneys or attorneys’ agent who are traditionally covered by
the attorney-client privilege.” 28 C.F.R. § 501.3(d).

[659]
Unlike other rules limiting attorney-client privilege, with SAMs there is no
initial judicial oversight over the decision to monitor communications; the
Attorney General alone decides the extent of “reasonably necessary”
monitoring. For a comparison of SAMs with other limitations on attorney client
privilege and communications, see Marianne Kerber and Alexis M. Thomas, “The
Erosion of Privacy After September 11: A Call to Arms for the Protection of the
Attorney-Client Relationship in the Face of a National Crisis,” Georgetown
Journal of Legal Ethics, vol. 16 (Summer 2003), p.693.

[661] Under
SAMs, communications remain covered by attorney-client privilege unless they
could “facilitate criminal acts or a conspiracy to criminal acts”
or are not related to legal advice—categories of information that would
be covered by well-recognized exceptions to the attorney-client privilege. See
28 C.F.R. § 501.3(d)(2)(ii).

[663]See UN Human Rights
Committee, General Comment 13, para. 9 (Interpreting the ICCPR as requiring
“counsel to communicate with the accused in conditions giving full
respect for the confidentiality of their communications,” and noting,
“[l]awyers should be able to counsel and to represent their clients in
accordance with their established professional standards and judgement without
any restrictions, influences, pressures or undue interference from any
quarter.”); see also, UN Human Rights Committee, General Comment 32,
para. 34 (“Counsel should be able to meet their clients in private and to
communicate with the accused in conditions that fully respect the
confidentiality of their communications.”). Numerous UN guidelines
likewise require “full confidentiality” of communications. See Body
of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment (Body of Principles), adopted December 9, 1988, G.A. Res. 43/173,
annex, 43 U.N. GAOR Supp. (No. 49A) at 200, U.N. Doc. A/45/49 (1990), principle
18(3)(4); Basic Principles on the Role of Lawyers, adopted by the Eighth United
Nations Congress on the Prevention of Crime and the Treatment of Offenders,
Havana, 27 August to 7 September 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 118
(1990), principles 8, 22; United Nations Standard Mimimun Rules for the Treatment
of Prisoners (Standard Minimum Rules), adopted by the First United Nations
Congress on the Prevention of Crime and the Treatment of Offenders, held at
Geneva in 1955, and approved by the Economic and Social Council by its
resolution 663 C (XXIV) of July 31, 1957, and 2076 (LXII) of May 13, 1977,
para. 93. See also, Inter-American Commission on Human Rights, Principles and
Best Practices on the Protection of Persons Deprived of Liberty in the
Americas, approved by the Commissioan during its 131st regular period of sessions,
held from March 3-14, 2008, O.A.S. Res. 1/08, O.A.S. Off. Rec. OEA/Ser/L/V/II.131, adopted
March 13, 2008, principle 5.

[669] US
Department of Justice, Office of the Inspector General, Evaluation and
Inspections Division, “The Federal Bureau of Prisons’ Monitoring of
Mail for High Risk Inmates,” report no. I-2006-009 (September 2006),
http://www.justice.gov/oig/reports/BOP/e0609/final.pdf (accessed July 2, 2014),
p. 94 (Memorandum from Paul R. Johnson, Acting Executive Officer of U.S.
Department of Justice Criminal Division, to Paul A. Price, Assistant Inspector
for Evaluations and Inspections: “June 26,
2014) 26, 2014)-13-31 (ch)All social visits for SAMs inmates are
non-contact and are monitored contemporaneously by the FBI as well as recorded
for later monitoring and analysis”).

[674] Inmates
at the CMUs were previously permitted only one phone 15-minute phone call a
week. See Aref v. Holder, 774 F.Supp. 2d 147, 154 (D.D.C. 2011). In March 2013,
the Bureau of Prisons reopened the period for public comment on a rule it
proposed in 2010 that would limit CMU prisoners to a single 15-minute phone
call and restrict them to one hour of family visitation a month (they currently
receive eight hours). See US Department of Justice, Bureau of Prisons,
“Proposed Rule: Notice to Reopen Comment Period,” 28 C.F.R Part
540; Department of Justice, Bureau of Prisons Docket No. 1148-N; US Department
of Justice, Bureau of Prisons, “Communication Management Units,” 75
FR 17324 (April 6, 2010).

[676]
Columbia Law School’s Human Rights Institute phone interview with Yassin
Aref, February 23, 2012. Aref was reportedly permitted to meet and hold his
newborn daughter at least twice prior to being sent to a CMU. He did not hold
her again until after he was transferred out of the CMU, when she was six years
old. See Complaint, Aref v. Holder, No. 1:10-cv-00539-BJR-DAR (D.D.C. filed
Apr. 1, 2010).

[681]
“If an inmate is placed at an institution that is more than 500 miles from
his/her release residence, generally, it is due to specific security
programming, or population concerns.” “Custody and Care:
Designations,” Federal Bureau of Prisons, accessed July 2, 2014,
http://www.bop.gov/inmates/custody_and_care/designations.jsp.

[682]
See Declaration of Leslie Smith, Chief of the Counter Terrorism Unit, Lindh v.
Warden, No. 2:09-cv-00215-JMS-MJD (S.D. Ind. Jan. 11, 2013) (“As a result
of documented problems with ongoing communications from some federal prisoners,
the volume, frequency and methods of allowing CMU inmates contact with person
in the community must be restricted as required by the goal of complete
monitoring of their communications”). However, communication limitations
for SAMs prisoners are due to the Department of Justice, not the Bureau of
Prisons, as we describe below. Moreover, for inmates held at pretrial
facilities and at Bureau of Prisons prisons, we were not able to find
bureau-level policies on contact and phone privileges, and many decisions may
be made at the warden-level. Some denial of contact and phone visits occurs
when inmates are placed in special housing units.

[684]
For example, while in 2008 the director of the Bureau of Prisons told Congress
that it had about 1200 “terrorist” inmates in custody, in November
2013, it told us there were only 475 such inmates in pre-conviction and
post-conviction custody. In 2008, then-Bureau of Prisons director Harley Lappin
told Congress there were “211 international terrorists” and a
little more than 1,200 total “[i]f you throw in the domestic
terrorists.” Asked where these “terrorists” were from, Lappin
said, “[y]ou know, primarily the Middle East.” He later provided a
breakdown indicating these “international terrorists” were citizens
of 37 countries, including the United States, as well as countries as varied as
Belize, Haiti and Japan. The designation as “international” rather
than “domestic” terrorist does not appearto be related to an
inmate’s US versus foreign citizenship. Nor does it appear to track the
inmate’s citizenship in a country that the US considers to be a hotbed of
activity by Al-Qaeda or any groups the U.S. describes as affiliated with
Al-Qaeda. It is thus hard to discern the underlying basis for these different
designations. In addition, Lappin’s figure of 211 “international
terrorist inmates” is far fewer than the Department of Justice’s
number of 494 individuals convicted of international terrorism or
terrorist-related offenses. In February 2012, Bureau of Prisons reported to the
Government Accountability Office that it had 373 inmates “charged with or
convicted of federal crimes related to terrorism” in its custody. In
November 2013, the Bureau of Prisons told us there were 332 post-conviction
prisoners designated as “international terrorism” and 91 as
“domestic terrorism,” while there were 52 pre-conviction prisoners
so designated in their custody. See Harley G.
Lappin, “Testimony of Harley G. Lappin before House Appropriations
Subcommittee on Commerce Justice, Science and Related Agencies,” US
Congress, March 12, 2008, (on file with Human Rights Watch); US
Government Accountability Office, “Guantánamo Bay Detainees:
Facilities and Factors for Consideration if Detainees Were Brought to the
United States,” report to the Chairman, Select Committee on Intelligence,
US Sentate,GAO-13-31 (November 2012), http://www.gao.gov/products/GAO-13-31
(accessed July 2, 2014); Bureau of Prisons documents related to SAMs obtained
on November 21, 2013 from Freedom of Information Act requests made by Human
Rights Watch on August 24, 2012 (on file with Human Rights Watch).

[685]
In 2007, the Bureau of Prisons released a “fact sheet” describing a
system to classify individuals as “terrorist inmates,” defined
broadly as “those having been convicted of, charged with, associated
with, or linked to terrorist activities, or belonging to organizations that
planned and/or executed violent and destructive acts against the government
and/or privately owned US corporations. Department of Justice, Fact Sheet:
Security at the Department of Justice Bureau of Prisons Administrative Maximum
Security Facility, February 21, 2007.

[687] The
Bureau of Prisons may base an initial placement decision on a prisoner’s
security score, which is calculated based on several factors, including the
sentencing court’s recommendation and the prisoner’s criminal
history. If the Bureau of Prisons seeks to place an individual at a higher or
lower-security prison, inconsistent with his security score, it must base its
decision on a “management variable.” The Bureau of Prison’s
Program Statement on inmate placement does not reference terrorism offenses or
“terrorist inmates” at any point. However, it describes one
management variable as “Central Inmate Monitoring,” applying to
“certain inmates who present special needs for management.” It is
possible that individuals deemed “terrorist inmates” are placed at
prisons inconsistent with their security scores, but without further
information we could not determine if this was the case. See US Department of
Justice, Federal Bureau of Prisons, “Program Statement: Inmate Security
Designation and Custody Classification,” September 12, 2006,
http://www.bop.gov/policy/progstat/5100_008.pdf (accessed June 26, 2014).

[691] In
July 2013, we used the BOP’s inmate locator to determine the placement of
494 defendants convicted of terrorism or terrorism-related offenses according
to the Department of Justice. Thirty-two of the prisoners were held in
low-security facilities; 41 in medium-security facilities. Thirteen prisoners
were held at high-security prisons other than ADX Florence.

[692]See Human Rights
Watch Letter to Harley G. Lappin, Federal Bureau of Prisons , May 2, 2007,
http://www.hrw.org/news/2007/05/01/letter-harley-g-lapin-federal-bureau-prisons-re-adx-florence;
Memorandum from Michael B. Cooksey, Assistant Director Correctional Programs
Division, Federal Bureau of Prisons to all Chief Executive Officers,
“Guidance for Handling of Terrorists and Recent Detainees,” October
1, 2001(“Following the tragic events of September 11, 2001, all inmates
in the custody of the Bureau of Prisons who were convicted of, charged with,
associated with, or in any way linked to terrorist activities were placed in
Administrative Detention as part of an immediate national security endeavor.”
(quoted and discussed in Laura Rovner and Jeanne Theoharis, “Preferring
Order to Justice,” American University Law Review, Vol. 61 (2012),
http://www.aulawreview.org/pdfs/61/61-5/Rovner-Theoharis.website.pdf (accessed
June 26, 2014), p. 1331.)).

[693]
Neither the term “terrorist activities” nor “national
security management concerns” are defined. Memorandum from Michael K.
Nalley, Regional Director, Federal Bureau of Prisons, North Central Regional
Office, November 2, 2007 (quoted in Rovner and Theoharis, “Preferring
Order to Justice,” American University Law Review, p. 1331).

[696]
US Government Accountability Office, “Improvements Needed in Bureau of
Prisons’ Monitoring and Evaluation of Impact of Segregated
Housing,” report to Congressional Requestors, GAO-13-429 (May 2013),
http://www.gao.gov/assets/660/654349.pdf (accessed July 1, 2014), p. 9. The
2012 European Court of Human Rights decision upholding extradition of prisoners
to ADX cited the Step Down program, reasoned that while there might be a
violation of the European Convention on Human Right’s prohibition on
torture and ill-treatment for inmates who “spent significant periods of
time” at ADX, the prison provided a way out for prisoners. However, ADX
prisoners must spend at least three years at the prison to progress out of ADX. ECHR, Babar Ahmad and Others v. the U.K., nos. 24027/07, 11949/08,
36742/08, 66911/09 and 67354/09, § 88,10 April 2012.

[697]
ECHR, Babar Ahmad and Others v. the U.K., nos. 24027/07, 11949/08, 36742/08,
66911/09 and 67354/09, § 88, 10 April 2012; US Government Accountability
Office, “Improvements Needed in Bureau of Prisons’ Monitoring and
Evaluation of Impact of Segregated Housing,” Report to Congressional
Requestors, GAO-13-429 (May 2013), http://www.gao.gov/assets/660/654349.pdf, p.
9. Fewer than 5 percent of ADX prisoners have completed the Step Down program
in just three years. Appellants’ Opening Brief at 10, Rezaq v.
Nalley, 677 F.3d 1001 (10th Cir. 2012). A study of 110 ADX prisoners reported
that the average length of solitary confinement at the prison was 8.2 years.
See also, Professor Laura Rovner, testimony before the US Senate Committee on
Judiciary Subcommittee on Constitution, Civil Rights, and Human Rights,
congressional hearing “Reassessing Solitary Confinement: The Human
Rights, Fiscal, and Public Safety Consequences,” Washington, DC, June 15,
2012, transcript at
http://www.law.du.edu/documents/student-law-office-clinical-programs/laura-rovner-university-of-denver-sturm-college-of-law.pdf
(describing Bureau of Prisons’ resistance to providing relevant
statistics and discussing study finding that 43 prisoners at ADX Florence and
USP Marion had been in solitary confinement for more than eight years)
(accessed July 2, 2014).

[699]
Ibid.; US Government Accountability Office, “Improvements Needed in
Bureau of Prisons’ Monitoring and Evaluation of Impact of Segregated
Housing,” Report to Congressional Requestors, GAO-13-429 (May 2013),
http://www.gao.gov/assets/660/654349.pdf, p. 60. In litigation before the
European Court of Human Rights, the US government reported that since the 2009
manual came into effect, it has moved an increasing percentage of prisoners to
ADX’s less restrictive units. ECHR, Babar Ahmad and Others v.
the U.K., nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09, §
88, 10 April 2012. Indeed, we are aware of at least two prisoners who
successfully completed the Step Down program and were transferred out of ADX,
although one described irregularities in the review system. Eljvir Duka was
transferred from ADX to a CMU in August 2011 after completing only two Step
Down phases, and his family reported that they could not learn why he was
transferred before completing the program. Shain Duka was transferred from ADX
to Big Sandy USP after completing the Step Down program: he spent one year in
ADX General Population, six months in ADX’s J Unit, six months in K-Unit,
and one year in the Delta Bravo Unit. Columbia Law School’s Human Rights
Institute email correspondence with Shain Duka, June 14, 2013. However, defense
lawyers remain concerned about the prospects for transfer out of ADX and argue
that only a minority of ADX prisoners have progressed through the program. ECHR,
Babar Ahmad and Others v. the U.K., § 191, 10 April 2012 (discussing
testimony and evidence submitted by defense lawyer and solitary confinement
expert Laura Rovner). According to the government’s September 2011
response to the European Court of Human Rights, there were only 89 prisoners in
the Step Down program, which is about a quarter of the population eligible for
it (this excludes ADX prisoners under SAMs and in the Control Unit, who are
subject to different procedures). Of those in the program, 25 were in the third
and final phase—forming about only 7 percent of the ADX prisoner
population eligible for the program. In response to a request by the European
Court of Human Rights, the Department of Justice in September 2011 reported
that there were 252 prisoners at ADX in General Population.

[700]
For example, before a prisoner is transferred to a Bureau of Prisons Control
Unit (a type of unit for inmates believed to pose a threat to other inmates or
to prison security), he or she is entitled to 24-hour advance notice of the
charges and the specific acts or evidence forming the basis for the transfer
recommendation, a live hearing with representation by a staff member, and the
opportunity to call witnesses and present documentary evidence and a written
decision. 28 C.F.R. § 541.40 (describing control unit programs) and §
541.43.

[703]
For a critique of the CMU designation process, see Center for Constitutional
Rights, et al, “Communications Management Units: Comments Submitted to
the Federal Bureau of Prisons,” comments submitted to US Department of
Justice, Federal Bureau of Prisons, Office of General Counsel, June 2010, http://ccrjustice.org/files/Complete_Selection_Comments-2010.0618.pdf
(accessed June 26, 2014).

[707]
28 C.F.R. § 541.49 (providing for review by a control unit team every 30
days and by the “Executive Panel” every 60 to 90 days).

[708] US
Government Accountability Office, “Improvements Needed in Bureau of
Prisons’ Monitoring and Evaluation of Impact of Segregated
Housing,” report to Congressional Requestors, GAO-13-429 (May 2013),
http://www.gao.gov/assets/660/654349.pdf (accessed July 1, 2014), p. 54; The US
Government Accountability Office reviewed ten files of CMU prisoners and found
that for two prisoners, the BOP “did not include documentation that unit
team staff regularly monitored the inmate’s CMU status every six
months.” US Government Accountability Office, “Improvements
Needed,” p. 58; see Memorandum in Support of Plaintiffs’ Motion for
Summary Judgment at 31-36, Aref v. Holder, No. 1:10-cv-00539-BJR-DAR (D.D.C.
filed March 23, 2014).

[713]
Letter from the Brenann Center for Justice to Sarah Qureshi, Office of General
Counsel, Bureau of Prisons, from Brennan Center for Justice, June 2, 2010,
http://www.ccrjustice.org/files/Public%20Comment%20Volume%20Former%20Corrections%20Officers-2010.0602.pdf
(accessed July 1, 2014); Columbia Law School’s Human Rights Institute
phone interview with Alexis Agathocleous, staff attorney at Center for
Constitutional Rights, August 27, 2012; Columbia Law School’s Human
Rights Institute phone interview with Laura Rovner, director of Civil Rights
Clinic at Sturm College of Law, University of Denver, February 6, 2013

[714]
See letter from Columbia Law School’s Human Rights Institute to Charles
E. Samuels, Director of the Bureau of Prisons, November 29, 2013. We received a
letter from the Bureau of Prisons Research Review Board directing us to submit
a research proposal; letter from Jody Klein-Saffran, Human Subjects Protection
Officer, Bureau of Prisons to Columbia Law School’s Human Rights
Institute, January 23, 2013. We submitted a research proposal on March 15, 2013
and at time of writing had received no response.

[717] Letter
from the Permanent Mission of the United States to the UN Office of the High
Commissioner of Human Rights and Juan Mendez, Special Rapporteur on torture and
other cruel, inhuman or degrading treatment or punishment, Feb. 23, 2012.

[721] Once
the request for modification is “made known,” information
concerning the proposed modification is forwarded to the prosecuting United
States Attorneys Office and the FBI for review and consideration.
Defendants’ Motion for Summary Judgment at 37, Ayyad v. Holder, No.
05-cv-02342 (D. Colo. filed Mar. 25, 2011).

[722]
During a review that occurs every six months, the Bureau of Prisons collects
recommendations from staff and the prisoner regarding the SAMs and current
conditions of confinement. Staff also review requests, grievances, and/or
administrative remedies submitted by the prisoner throughout the year,
disciplinary information from throughout the year, correspondence to/from the
prisoner, types of educational materials requested, types of leisure materials
requested, and participation in the various programming offered by the
institution. Plaintiff’s Response to Defendants’ Motion for Summary
Judgment, Exhibit 3 at 15, Mohammed v. Holder, No. 1:07-cv-02697-MSK-BNB, 2014
WL 2743935 (D. Colo. June 17, 2014). Since 2009, the review provides an
in-person meeting with the prisoner and his unit team approximately one week
following the submission of written comments by the prisoner. While this
process allows for some input from the prisoner, it is inadequate because the Bureau
of Prisons has limited authority to modify or remove SAMs yet the the Bureau of
Prisons is the only institution the prisoner can questions from and with which
he may discuss his concerns.

[723] See
Plaintiff’s Response to Defendants’ Motion for Summary Judgment at
54, Ayyad, No. 05-cv-02342 (D. Colo. filed May 17, 2012);
Plaintiff’s Response to Defendants’ Motion for Summary Judgment,
Exhibit 21 at 12, Mohammed v. Holder, No. 1:07-cv-02697-MSK-BNB, 2014 WL
2743935 (D. Colo. June 17, 2014) (“[T]he Bureau’s role in such
matters is to inform you of the SAMs restrictions and ensure the measures are
followed. To this extent, unit staff have influence as to how the restrictions
are applied, and can affect appropriate modifications provided such approval
would not jeopardize security concerns”).

[725] Following
the meeting with the inmate, ADX staff prepare a memorandum summarizing the
discussion with the prisoner, which is then routed to ADX personnel who are in
a position to provide additional input about the prisoner. See
Defendants’ Motion for Summary Judgment at 32, Ayyad v. Holder, No. 05-cv-02342
(D. Colo. filed March 25, 2011). The US Attorney’s Office and the
DOJ’s Office of Enforcement Operations also receive information after
this meeting.

[726]
See, e.g., Plaintiff’s Response to Defendants’ Motion for Summary
Judgment, Exhibits Part 4 at 17, Mohammed, No. 1:07-cv-02697-MSK-BNB,
2014 WL 2743935 ("Based upon information provided to me of your proclivity
for violence there is substantial risk that your communications or contacts
with persons could result in death or serious bodily injury to persons, or
substantial damage to property that would entail the risk of serious bodily
injury to persons." This explanation does not provide any evidence of the
prisoner's "proclivity of violence," other than the original
conviction of a terrorism crime, and merely tracks the statutory language for
imposing SAMs).

[728] In
2012, Director of the Bureau of Prisons Samuels described a “three phase
program with increased out of cell time or increased telephone calls monthly
based upon positive adjustment and programming, again depending upon the
specific SAMs conditions.”Charles E. Samuels, Jr., Director,
Federal Bureau of Prisons, statement before the US Senate Committee on
Judiciary Subcommittee on Constitution, Civil Rights, and Human Rights
congressional hearing “Reassessing Solitary Confinement: The Human
Rights, Fiscal, and Public Safety Consequences,” Washington, DC, June 19,
2012, transcript at
http://www.justice.gov/ola/testimony/112-2/06-19-12-bop-samuels.pdf, p. 9. The “Special
Security Unit Program” is the counterpart of the Step Down Program for
ADX General Population inmates. According to the Bureau of Prisons, its purpose
is “to confine inmates with SAMs under close controls while providing
them opportunities to demonstrate progressively responsible behavior and
participate in programs in a safe, secure environment.” In 2009, ADX
increased these prisoners out-of-cell recreation time from five to ten hours,
which is the same as non-SAMs prisoners. Defendants’ Reply in Support of
Motion for Summary Judgment at 46, Mohammed v. Holder, No.
1:07-cv-02697-MSK-BNB, 2014 WL 2743935 (D. Colo. June 17, 2014); Defendants’
Reply in Support of Motion for Summary Judgment, Exhibit Q-1, Declaration of
ADX Associate Warden Louis J. Milusnic, ¶ 34, Mohammed, No. 1:07-cv-02697-MSK-BNB,
2014 WL 2743935.

[729]
In litigation, the Bureau of Prisons has described a review process for
“H Unit” prisoners that occurs every six months. To be eligible for
Step Down, prisoners must have a minimum of twelve months of clear conduct (no
disciplinary infractions), positive behavior, respectful conduct toward staff
and other prisoners, and “positive overall institutional
adjustment.” Defendants’ Reply in Support of Motion for Summary
Judgment at 48, Mohammed v. Holder, No. 1:07-cv-02697-MSK-BNB, 2014 WL
2743935 (D. Colo. June 17, 2014). Inmates must also participate and
complete recommended programs. While the prisoner participates in his six-month
program review, he is not entitled to have counsel or call witnesses. See
Implementation of the Special Security Unit Program, December 21, 2009, p. 3. In the first and second phases,
prisoners progress from getting two 15-minute non-legal phone calls per month
to three such calls.See Charles E. Samuels, Jr., Director, Federal Bureau of Prisons,
statement before the US Senate Committee on Judiciary Subcommittee on
Constitution, Civil Rights, and Human Rights, congressional hearing
“Reassessing Solitary Confinement,” Washington, DC, June 19, 2012,
transcript at http://www.justice.gov/ola/testimony/112-2/06-19-12-bop-samuels.pdf;
Ibid., p. 47; Defendants’ Reply in Support of Motion for Summary
Judgment, Exhibit Q-1, Declaration of ADX Associate Warden Louis J. Milusnic,
¶¶ 19-20, Mohammed, No. 1:07-cv-02697-MSK-BNB, 2014 WL
2743935. In the third phase of the program, prisoners get their first
opportunity to have physical contact with other individuals—a minimum of
1.5 hours with a small group of inmates—although like other ADX prisoners
they are still denied any contact visits. Defendants’ Reply in Support of
Motion for Summary Judgment at 47-48, Mohammed, No.
1:07-cv-02697-MSK-BNB, 2014 WL 2743935; Defendants’ Reply in Support of
Motion for Summary Judgment, Exhibit Q-1, Declaration of ADX Associate Warden
Louis J. Milusnic, ¶ 21, Mohammed, No. 1:07-cv-02697-MSK-BNB, 2014
WL 2743935. As of September 2011 there were only six prisoners in this
phase of the program. Opinion and Order, Mohammed, No.
1:07-cv-02697-MSK-BNB, 2014 WL 2743935. To get to the third phase, inmates must
get their SAMs modified, though the procedure for obtaining modification is
unclear.

[731]
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (Convention against Torture), adopted December 10, 1984, G.A. res.
39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984),
entered into force June 22, 2006, art.
11. If a person alleges ill-treatment, he or she has a right to
complain to, and to have his case promptly and impartially examined by,
authorities of the jurisdiction in question.
Convention against Torture,
arts. 12 and 13.

[734]
One positive result is the development of culturally and religiously sensitive
guidelines for the FBI’s arrest practices. Moreover, several U.S.
Attorneys have publicly written or spoken out against stigmatization and
vilification of Muslim communities, and sometimes they have sent powerful
messages of support by investigating and prosecuting hate crimes. See Todd
Jones, US Attorney for the District of Minnesota, “Arab and Muslim Engagement:
Countering Violent Extremism through Community-Based Approaches,”
http://www.justice.gov/usao/mn/oped.html (accessed July 1, 2014); Curtis
Morgan, “Feds work to build trust with Muslim community,” Miami
Herald, May 16, 2011, http://www.mcclatchydc.com/2011/05/16/114255/feds-work-to-build-trust-with.html
(accessed June 26, 2014).

[735]
Executive Office of the President of the United States, “Empowering Local
Partners to Prevent Violent Extremism in the United States,” August 1,
2011, http://www.whitehouse.gov/sites/default/files/empowering_local_partners.pdf
(accessed July 1, 2014), introduction.

[737]
Sahar F. Aziz, “Protecting Rights as a Counterterrorism Tool: The Case of
American Muslims,” September 10, 2012, http://dx.doi.org/10.2139/ssrn.2144299
(accessed June 20, 2014).

[738]
Executive Office of the President of the United States, “Strategic
Implementation Plan for Empowering Local Partners to Prevent Violent Extremism
in the United States,” December 1, 2011, http://www.whitehouse.gov/sites/default/files/sip-final.pdf
(accessed June 19, 2014), p. 8; see also, Benjamin B. Wagner, US Attorney for
the Eastern District of California, “United Front is Best Against
Terrorism,” Merced Sun-Star, April 9, 2011,
http://www.mercedsunstar.com/2011/04/09/1845500/benjamin-b-wagner-united-front.html
(accessed July 1, 2014).

[742] Muslim
leaders have also described fears about the targeting of youth in media
articles. See Alejandro J. Beutel, “Muslim Americans and U.S. Law
Enforcement: Not Enemies, But Vital Partners,” Christian Science
Monitor, December 30, 2009,
http://www.csmonitor.com/Commentary/Opinion/2009/1230/Muslim-Americans-and-US-law-enforcement-not-enemies-but-vital-partners
(accessed June 26, 2014).

[744]
Columbia Law School’s Human Rights Institute interview with Shamshad
Ahmad, president of Masjid as-Salam, Albany, New York, June 20, 2012. In
another example, at Oregon’s largest mosque, Masjed As-Saber, the FBI has
reportedly put at least five men affiliated with the mosque, including its
longtime religious leader, on a no-fly list. “There’s this sense of
nervousness…No one knows who’s secretly the FBI,” one
congregant said. Helen Jung, “Masjed As-Saber, Oregon Mosque Under FBI
Scrutiny,” Religion News Service, June 17, 2012,
http://www.huffingtonpost.com/2012/06/17/masjed-as-saber-oregon-mosque-fbi-scrutiny_n_1598520.html
(accessed June 26, 2014).

[745]
According to “Preventing Violent Extremism,” “Countering
radicalization to violence is frequently best achieved by engaging and
empowering individuals and groups at the local level to build resilience
against violent extremism. Law enforcement plays an essential role in keeping
us safe, but so too does engagement and partnership with communities.” Executive
Office of the President of the United States, “Empowering Local Partners
to Prevent Violent Extremism in the United States” August 1, 2011, http://www.whitehouse.gov/sites/default/files/empowering_local_partners.pdf
(accessed June 19, 2014), p. 2.

[750]
Multiple sources, including former and current government officials, told us
that when the FBI attends or organizes events under the banner of
“community outreach,” it sometimes gathers information on
communities that it uses as intelligence, that is, to feed into analyses of
radicalization and extremism, and as potential bases for investigations into
particular individuals. Columbia Law School’s Human Rights Institute
interview with (name and date withheld); Columbia Law School’s Human
Rights Institute interview with (name and date withheld); see also, Sahar Aziz,
“Protecting Rights as a Counterterrorism Tool: The Case of American
Muslims.” Suspicions of the FBI’s misuse of community outreach that
we heard from local activists and community organizations are difficult to
corroborate by their nature, but there is strong documentary evidence regarding
incidences in San Francisco where FBI agents who participated in community
outreach events recorded notes on presentations and sermons at mosques and
conversations at community and religious dinners. Though the FBI agents
presented their efforts to outsiders as part of an outreach program, some of
the information gathered was stored in FBI intelligence files, according to
documents obtained through a Freedom of Information Act request by the ACLU.
See ACLU, “Community Outreach as Intelligence Gathering,” December
1, 2011, http://www.aclu.org/files/assets/aclu_eye_on_the_fbi_alert_community_outreach_as_intelligence_gathering_0.pdf
(accessed June 26, 2014).

[758]
For example, a Somali man approached by the FBI to become an informant reported
that he was threatened by them, and shortly after their initial contact visit
was fired from his job. “Muslim Group Seeks DOJ Probe of FBI
'Retaliation' in Minnesota,” Council on American-Islamic Rlations (CAIR)
press release, February 18, 2013,
http://cair.com/press-center/press-releases/11722-muslim-group-seeks-doj-probe-of-fbi-retaliation-in-minnesota.html
(accessed June 30, 2014).

[762]
US Department of Justice, Office of the Inspector General, Evaluation and Inspections
Division, “Review of FBI Interactions with the Council on
American-Islamic Relations,” report no. I-2013-007R (September 2013),
http://www.justice.gov/oig/reports/2013/e0707r-summary.pdf (accessed July 11,
2014), p.1. The effects also reached beyond the US.
One of the unindicted co-conspirators was a Canadian charity, the International
Relief Fund for the Afflicted and Needy (Canada) (IRFAN-Canada). In a Canadian
Revenue Agency (CRA) audit of IRFAN that started in 2008, the CRA cited the HLF
list of unindicted co-conspirators as a factor in questioning
IRFAN-Canada’s previous representation that it was not aware of any
credible allegation that organizations with which it worked were connected to
Hamas. See Chloé Fedio, “Former charity funded terror
group: federal audit,” Toronto Star, April 15, 2011, http://www.thestar.com/news/gta/2011/04/15/former_charity_funded_terror_group_federal_audit.html(accessed June 24, 2014).No
criminal charges were ever brought and CRA concluded its first audit action
against IRFAN-Canada in late December 2004 without adverse outcome. In 2008,
CRA commenced a second audit of IRFAN-Canada which continued until 2011, with
CRA alleging, among other things, that the charity redistributed funds
collected for other issues and sent them to the West Bank and Gaza. In a letter
to IRFAN-Canada’s lawyers in 2010, CRA noted that “court documents
released during the successful 2008 conviction in the United States of the Holy
Land Foundation for Relief and Development (HLF) on terrorist financing charges
named IRFAN-Canada on a list of unindicted co-conspirators considered to be
‘entities that are and/or were part of the Global Hamas financing
mechanism.’” See Letter from Charities Directorate, Canada Revenue
Agency, to Carters Professional Corporation, December 14, 2010 (on file with
Human Rights Watch).CRA
considered this a factor in questioning IRFAN-Canada’s previous
representation that it was not aware of any credible allegation that
organizations with which it worked were connected to Hamas. In 2011,
IRFAN-Canada lost its charitable status. On April 29, 2014, IRFAN-Canada was declared a terrorist entity;
IRFAN-Canada’s appeal of the denial of its charitable status is on hold
due to its recent designation. See US Department of Justice, Office of
Inspector General, Evaluation and Inspections Division, “Executive
Summary: Review of FBI Interactions with the Council on American-Islamic
Relations,” no. I-2013-007R (September 2005),
http://www.justice.gov/oig/reports/2013/e0707r-summary.pdf (accessed July 9,
2014), p. 1.

[764]
As a 2013 study put it: “[B]ecause individuals who are prominent in the
American Muslim community, or perceived to be leaders, are often primary
candidates for [FBI] interviews, there is also an assumption that community
leaders are compromised.” MACLC, “Mapping Muslims: NYPD Spying and
its Impact on American Muslims,” March 11, 2013,
http://www.law.cuny.edu/academics/clinics/immigration/clear/Mapping-Muslims.pdf
(accessed June 30, 2014), p. 29.

[765]
Sahar F. Aziz, “Protecting Rights as a Counterterrorism Tool: The Case of
American Muslims,” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2144299
(accessed July 13, 2014); see also, “Federal Civil Rights Engagement with
Arab and Muslim American Communities Polst 9/11,” Sahar F. Aziz, written
testimony before the US Commission on Civil Rights, Washington, DC, November 9,
2012, testimony at http://www.ispu.org/pdfs/aziz_testimony_usccr.pdf (accessed
June 30, 2014).

[768]
See Arun Kundnani, Spooked! How Not to Prevent Violent Extremism (London:
Institute of Race Relations, 2009), http://www.irr.org.uk/pdf2/spooked.pdf
(accessed June 30, 2014), pp. 28-34 (“What is at issue is whether
professionals providing non-policing local services, such as youth workers and
teachers, should be expected to routinely provide information to the
counter-terrorist police not just on individuals who might be ‘at
risk’ of committing a criminal offence but also on the political and
religious opinions of young people, and the dynamics of the local Muslim
community as a whole.”).

[769]
United Kingdom Secretary of State for the Home Department, Prevent Strategy
(London: The Stationary Office, June 2011),
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/97976/prevent-strategy-review.pdf
(accessed July 10, 2014).

[770]
See House of Commons, Communites and Local Government Committee, Preventing
Violent Extremism: Sixth Report of Session 2009-10 (London: The
Stationary Office Limited, 2010),
http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcomloc/65/65.pdf
(accessed June 30, 2014).

[771]
The UK Association of Chief Police Officers describes Channel as using
“early interventions to protect and divert people away from the risk [of
committing terrorist-related activity] they face before illegality
occurs.” “Channel – Protecting Vulnerable People from Being
Drawn Into Terrorism,” Association of Chief Police Officers,
http://www.acpo.police.uk/ACPOBusinessAreas/PREVENT/Channel.aspx; Channel is part of a wider government
strategy for preventing violent extremism known as Prevent. “Protecting
the UK against terrorism,” last modified March 26, 2013
https://www.gov.uk/government/policies/protecting-the-uk-against-terrorism/supporting-pages/prevent.
Prevent was updated in 2011 following significant criticism. See,
“Updated anti-extremism strategy,” BBC News Online, June 8,
2011, http://www.bbc.co.uk/news/uk-13679360 (accessed June 26, 2014).

[772] Columbia
Law School’s Human Rights Institute interview with Arun Kundnani, New
York, April 8, 2013; see also, Kundnani, Spooked!; Arun Kundnani,
“Still Spooked,” IRR News Service, July 7, 2011,
http://www.irr.org.uk/news/still-spooked/ (accessed June 30, 2014). One danger
of the Channel program is that community and organization partners may be
pressured to provide information to the government not just about individuals
who might be “at risk” of committing a criminal offense, but about
the political and religious opinions of local communities and their members,
which may be used as intelligence.The government may also use Channel to
collect information from referred individuals to prosecute their friends or
relatives. Furthermore, although the police purport to refer only serious cases
to the Prevent program, referrals are based on activity, such as visiting extremist
websites or making political statements, which may raise freedom of expression
concerns.

[774]
Some advocates question whether the FBI would use “soft
interventions” as a pretext to gather information on communities and
particular individuals, for the ultimate purpose of prosecutions. And others
have noted that in the absence of a clear direction from the Department of
Justice to regularize what is now an ad-hoc practice, FBI agents would face
overwhelming pressure from their colleagues and other government agencies to
take the risk-averse approach of investigation (for the purpose of
prosecution).

[775]
See Executive Office of the President of the United States, “Empowering
Local Partners to Prevent Violent Extremism in the United States” August
1, 2011, http://www.whitehouse.gov/sites/default/files/empowering_local_partners.pdf
(accessed June 19, 2014), p. 2. A focus on Al-Qaeda-inspired extremism and
American Muslim communities finds that since 9/11, many acts of mass violence
and terrorism in the United States have not been related to Al-Qaeda. One study
estimates that there have been 33 terrorism-related fatalities in the United
States in the 11 years since 9/11 involving Muslims; in comparison, there were
66 deaths from mass shootings by non-Muslims in 2012 alone. See Charles
Kurzman, Muslim-American Terrorism: Declining Further, (Chapel Hill,
North Carolina: Triangle Center on Terrorism and Homeland Security, 2013),
http://kurzman.unc.edu/files/2011/06/Kurzman_Muslim-American_Terrorism_February_1_2013.pdf
(accessed June 30, 2014). Another study notes that between 9/11 and 2012, more
than 250 Americans have been killed in attacks by far-right individuals and
groups, including white supremacists and Christian fundamentalists, and
describes a “dramatic rise in the number of attacks and violent plots”
inspired by far-right ideologies since 2007. Arie Perliger, Challengers from
the Sidelines: Understanding America’s Violent Far‐Right (West Point, NY:
Combating Terrorism Center, US Military Academy, 2013), p. 3, 100.

[776]
Will McCants and Clinton Watts, “U.S. Strategy for Countering Violent
Extremism: An Assessment,” Foreign Policy Research Institute E-Notes (December
2012), http://www.fpri.org/docs/McCants_Watts_Countering_Violent_Extremism.pdf
(accessed July 6, 2014). McCants is a
former State Department senior adviser for Countering Violent Extremism, and
Clinton Watts is a former FBI special agent on a Joint Terrorism Task Force.

[778]
As the Homeland Security Advisory Council put it in 2010, while
“community-based law enforcement efforts hold great promise in preventing
violent crime that is terrorism-related, that promise will be best realized
when local authorities work with community members to understand and mitigate
all threats facing local communities.” Homeland Security Advisory
Council, “Countering Violent Extremism (CVE) Working Group,” Spring
2010, http://www.dhs.gov/xlibrary/assets/hsac_cve_working_group_recommendations.pdf
(accessed July 6, 2014).

[779]
Six of the prisoners are not quoted or referred to by name in the report, but
review and documentation of their experiences informed our analysis of
detention conditions.

[781] All of
the solitary pretrial detention was administrative in nature except for 4 of
the 11 months served by Raja Khan, which were punitive, and possibly the time
in solitary served by Bilal, for which we were unable to obtain specific
details. The case of Shifa Sadequee is not referred to by name in this report,
but review and documentation of the case informed our analysis.

[783]
This analysis does not consider the number of counts of each offense for each
conviction. For example, if an individual was convicted of 2 counts of
Conspiracy, the Conspiracy conviction is only counted once as there was only a
single conviction.